UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, Plaintiff; v. SA-14-CA-0073-DAE SAPD OFFICER T. SWAN, SAPD OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT,, CITY OF SAN ANTONIO, Defendants. © tor om un ean eon cn ton ean ean en PLAINTIFFS’ MOTION FOR RECONSIDERATION, 2"! AMENDED MOTION TO COMPEL DISCOVERY, 1# MOTION FOR SANCTIONS & OPPOSED MOTION TO MODIFY THE COURT'S SCHEDULING ORDER L INTRODUCTION Comes now the Plaintiff Denise McVea, (hereinafter "Plaintiff"), and prays this honorable Court to require the Defendant, City of San Antonio (hereinafter “Defendant”) to obey the rules of this Court with regard to the production of documents and other discovery pursuant to Fed. R, Civ. Proc. 34. The failure of Defendant to produce said documents is a vexatious attempt to improperly limit the scope of discovery and frustrate justice. Defendant's withholding of relevant documentation is part of a willful strategy to improperly cover up conspiratorial and unlawful police activity and to conceal admissible evidence. Plaintiff Denise MeVea files this Motion for Reconsideration, Second Amended Motion to Compel Discovery Response, Motion to Modify Scheduling Order and Motion for Sanctions Plaintiffs Amended Motion to Compl Discovery (COSA) 1 ‘SAI4-CA.O73- DAEUNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, Plaintiff; v. SA-14-CA-0073-DAE SAPD OFFICER T. SWAN, SAPD OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT., CITY OF SAN ANTONIO, Defendants. co co em nn tan cen an in sn PLAINTIFFS’ MOTION FOR RECONSIDERATION, 2"! AMENDED MOTION TO COMPEL DISCOVERY, 1 MOTION FOR SANCTIONS & OPPOSED MOTION TO MODIFY THE COURT'S SCHEDULING ORDER L INTRODUCTION Comes now the Plaintiff Denise McVea, (hereinafter "Plaintiff"), and prays this honorable Court to require the Defendant, City of San Antonio (hereinafter “Defendant”) to obey the rules of this Court with regard to the production of documents and other discovery pursuant to Fed. R. Civ. Proc. 34. The failure of Defendant to produce said documents is a vexatious attempt to improperly limit the scope of discovery and frustrate justice. Defendant's withholding of relevant documentation is part of a willful strategy to improperly cover up conspiratorial and unlawful police activity and to conceal admissible evidence. Plaintiff Denise McVea files this Motion for Reconsideration, Second Amended Motion to Compel Discovery Response, Motion to Modify Scheduling Order and Motion for Sanctions Plaintiff's 24 Amended Motion to Compel Discovery (COSA) 1 SAA4CA-0073-DAEand would show the Honorable Court the following: I. NATURE OF CASE 1. This is a suit for violations of the Plaintiff's civil rights as protected by the Constitution and laws of the United States of America under the Fourth and Fourteenth Amendments of the U.S. Constitution, 42 US.C. § 1983 and 42 USC. 1985(2)(3). Plaintiff filed suit against defendants the City of San Antonio (aka San Antonio Police Department), SAPD Officer Swan, SAPD Sgt. Scott, and various other officers related to an unlawful arrest and alleged illegal search and seizure at her place of business on or about January 21, 2013. Plaintiff alleges that the officers had no probable cause to arrest Plaintiff, that they had no legal authority to seize her belongings, that they denied her due process when they failed to present her before a magistrate after illegally imprisoning her, and that they maliciously prosecuted her after failing to show probable cause for her arrest and detention. Plaintiff further charges that the officers and SAPD demonstrated that they knew the arrest and detention were illegal and a violation of Plaintiff's Constitutional rights when they knowingly prevented her from being seen by a magistrate, when they falsely cited state law, and when they dropped the charges against her on the day of trial. Plaintiff further alleges that when Defendants arrested, imprisoned, and maliciously prosecuted her without probable cause and without due process, they joined an ongoing conspiracy to violate Plaintiff's constitutional rights in violation of the laws of the United States of America. Plaintiff's 24 Amended Motion to Compel Discovery (COSA) 2 SA-4-CA-0073-DAE.I. PROCEDURAL BACKGROUND 2. Pursuant to the July 25, 2014 Scheduling Order filed in this cause of action, the discovery period in this cause ended on November 24, 2014. 3. Plaintiff timely served an original Request for Production of Documents on Defendant San Antonio on or about October 15, 2014. [Copies of this request is hereby attached as Exhibit A and herein incorporated by reference ] Plaintiff served Plaintiff's First Supplemental Request for Production of Documents on Defendant City of San Antonio on or about October 17, 2014. [Copies of this request is hereby attached as Exhibit B and herein incorporated by reference.] 4. Plaintiff timely served notice of subpoena for Detective Reginald Freeman and Detective James Phelan on opposing counsel on October 26, 2014. 5. Plaintiff served Plaintiff's Second Supplemental Request for Production of Documents on Defendant City of San Antonio on or about November 4, 2014 [Copies of this request is hereby attached as Exhibit C and herein incorporated by reference] 6. On November 14, 2014, Defendant City of San Antonio served on Plaintiff its first response and objections to her requests for production. [Defendant City of San Antonio’s Responses and Objections to Plaintiff's Request for Production is hereby attached as Exhibit D and herein incorporated by reference] 7. On November 14, 2014, Defendant City of San Antonio served on Plaintiff its objections to Plaintiff's first supplemental request for production. [Defendant City of an Antonio's Responses and Objections to Plaintiff's First Supplemental Request Plaintif’s 24 Amended Motion to Compel Discovery (COSA) 3 ‘SAAL-CA-0073-DAEfor Production is hereby attached as Exhibit E and herein incorporated by reference] 8. Defendant City of San Antonio claims it did not receive Plaintiff's Second Supplemental Request for Production. 9. On November 24, 2014, Plaintiff filed a Motion to Compel against Defendant City of San Antonio and Defendant City of San Antonio filed its response to that motion on December 1, 2014. [Those documents are hereby attached respectively as Exhibit F and Exhibit G and incorporated by reference] 10. On December 2, 2014 Plaintiff agreed to depose SAPD Detective James Phelan on December 9, 2014 and SAPD Detective Reginald Freeman on December 10, 2014. When Defendant did not respond, she followed up on December 4, 2014, reiterating her availability for the depositions. [Exhibit I, Bates No. 0035] 11. Plaintiff received Defendant’s December 1, 2014 response to her November 24, 2014 motion to compel on December 5, 2014. 12. The Court denied Plaintiff's November 24, 2104 Motion to Compel on December 5, 2014. Plaintiff learned of the Court's Order denying her Motion to Compel on November 8, 2014 from opposing counsel Michael Siemer after she filed an amended motion to compel with the court clerk that same day. Plaintiff received actual notice of the Order from the Court on November 9, 2014. [The Court Order denying Plaintiff's Motion to Compel is hereby attached as Exhibit H and is herein incorporated by reference] 13. Plaintiff has attempted to confer with Defendant City of San Antonio's Plaintiff's 21 Amended Motion to Compel Discovery (COSA) 4 ‘SAA4-CA-0073-DAEcounsel in a good faith effort to obtain requested production without court action. Fed. R. Civ. P. 37(a)(1). [Email Correspondence between Denise McVea and Michael Siemer from October 1, 2014 to December 8, 2014 (Bates No. 00001-00043) is hereby attached as Exhibit I and herein incorporated by reference] IV. FACTUAL BACKGROUND. Specifically, Plaintiff objects to the Defendant's withholding of the following production: 14, 15. 16. Production Request 7: Plaintiff requested “all police reports, contact reports, investigatory reports, etc. related to 1614 Martin Luther King, San Antonio, Texas 78203 since 1993.” Defendant made several improper boilerplate objections to the request and provided only 14 pages responsive to that request [Exhibit D]. Production Request 8: Plaintiff requested “(a)ll police incident, contact, and investigatory reports related to the January 21, 2013 incident that is the basis for this cause of action.” Defendant made several improper boilerplate objections to the request and provided only 10 pages responsive to that request. [Exhibit D]. Production Request 14: Plaintiff requested “(a)ny and all records or reports involving Denise McVea in the custody of the San Antonio Police Department, including but not limited to calls for service, emergency and non-emergency calls to 911 dispatch, all complaints, requests for Plaintiff's 24 Amended Motion to Compel Discovery (COSA) 5 SAA4-CA-0073-DAE.investigation, Internal Affairs documents, photos, fingerprints, DNA, in essence any record kept by the San Antonio Police Department in its regular course of business that records its interaction or communication in any way with Plaintiff in any and all capacities between 2006 and the present date.” Defendant proffered no objections to this request, but provided only a miniscule fraction of the documents that would be responsive to this request. V. ARGUMENT AND AUTHORITIES A. The Discovery Sought is Relevant and Discoverable. 17. A motion to compel may be brought where responses to Rule 34 requests for production are insufficient. See Fed. R. Civ. P. 37(a)(3)(B)(iv). The party seeking to compel discovery has the initial burden of establishing that a request satisfies the relevancy requirements of Rule 26(b)(1). Hinkley v. Vail, 2013 WL 2444214 (W.D. Wa), order rescinded in part by, 2013 WL 3852984. It is not necessary for a moving Party to make a prima facie case to justify discovery. When the discovery sought appears relevant on its face, "[t]he party resisting discovery bears the burden of establishing lack of relevance by demonstrating that the requested discovery either does not come within the broad scope of relevance or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." Pulsecard, Inc. v. Discover Card Services, Inc,, 168 F.R.D. 295, 309 (D. Kan. 1996). “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any Plaintiffs 2« Amencled Motion to Compel Discovery (COSA) 6 ‘SAI4-CA.O073-DAEnon-privileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action, Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). 18. _ Plaintiff argues that the information sought is discoverable because it reveals a full police history of the location where Plaintiff was arrested, a complete and revealing history of Plaintiff's interactions with SAPD and its officers and a more complete account of police officers’ actions on the day of her arrest. Because this is a due process case alleging conspiracy and constitutional deprivations due to policies and customs, the documents and information sought is necessarily and obviously relevant. Plaintiff has had contact with the police department nearly a hundred times since 2006, whether through emergency or non-emergency dispatch calls, emails, calls for service, incident reports, etc. On at least two occasions, police investigators spent significant amount of time in her house and interrogated Plaintiff ostensibly as part of an investigation into organized drug activity about a nearby property that continues to deal copious amounts of drugs in Plaintiff's neighborhood. Because of sustained cyber attacks and systematic denial of records requests by the SAPD Records Department, Plaintiff does not have a record of those interactions. At the same time, Defendants’ entire defenses are predicated on the Plainti’s 2! Amended Motion to Compel Discovery (COSA) 7 ‘SAA4-CA-OI73-DAEspurious and defamatory suggestion that Plaintiff somehow caused the constitutional deprivations she suffered at the hands of the San Antonio Police Department. By withholding relevant production, Defendant City of San Antonio is attempting to improperly buttress that falsity and conceal a disturbing record of abuse inflicted on Plaintiff by SAPD officers over a period of several years. Defendants are attempting to limit the scope of discovery to select, innocuous interactions during the period of one (1) year. Knowing that any reasonable person would find a full accounting of police's historic treatment of Plaintiff unconscionable, Defendant's counsel seeks to improperly conceal the full record from the Court by flouting Plaintiff's timely served production requests. In her Amended Petition, Plaintiff alleges that when Defendants arrested, imprisoned, and maliciously prosecuted her without probable cause and due process, they joined an ongoing conspiracy to violate Plaintiff's constitutional rights. Much of the documentation withheld by the City of San Antonio would reveal prima facie evidence of collusion between Defendant officers and their supervisors or colleagues and civilians implicated in federal fraud. Specifically, the Defendants are withholding a sizeable amount of documentation related to SAPD police activity and involvement in various aspects of 1614 Martin Luther King. Police officers’ numerous calls and interactions with Plaintiff on behalf of outside suspects necessarily involve conduct that SAPD policy dictates must be documented. If those documents do not exist, then Plaintiff request the Court compel Defendant City of San Antonio to expressly state so, because the absence of those documents is Plains 2+! Amended Motion to Compel Discovery (COSA) 8 ‘SAA14-CA-O073-DAEcompelling evidence for the jury. By withholding so much production, the city conceals relevant documentation of SAPD officers’ participation in a wider conspiracy by improperly taking Plaintiff's unlawful arrest and prosecution out of the context in which it occurred. "Seemingly innocent or ambiguous behavior can give rise to a reasonable inference of conspiracy in light of the background in which the behavior takes place." Fears v. Wilhelmina Model Agency, Inc., 2003 WL 21659373, 61 Fed. R. Evid, Serv. 1451 (S.D.N.Y. 2003). The City’s willful attempt to limit the record to conceal the context inherent in the officers’ conduct is sanctionable activity. B. Defendants have a duty to produce timely requested documents that have been described with “reasonable particularity”. 19. Defendants are blatantly flouting Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, which holds that “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”. Ibid. The rules goes on to specify that “(i)f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”. Ibid (ii). In Wheeler v. United States, 226 U.S. 478, a subpoena was enforced which called for copies of all letters and telegrams, all cash books, ledgers, journals and other account books of the corporation covering a period of fifteen months; cf. Interstate Commerce Commission v. Brimson, 154 U.S. 447. The US. Supreme Court, by Mr. Justice Sutherland, has said: "The subpoena . . . specifies a Plaintifs 2¢ Amended Motion to Compel Discovery (COSA) 9 SA-14-CA.0073-DAE.reasonable period of time and, with reasonable particularity, the subjects to which the documents called for relate. Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 553- 554, and Wheeler v. United States," supra, Plaintiff's production requests far exceed the standards established by precedent. Her request involved documents related to one incident that occurred through a short period of time or one person through a series of a few years. The creation of the call log itself occurred during a finite moment in that single day. In Dauska v. Green Bay Packaging Inc, 291 E.R.D. 251 (ED. Wisc. 2013), the Court determined that “requests seeking production of documents and emails relating to a particular issue or claim were not overbroad.” Krause v. NEVADA MUTUAL INSURANCE CO,, Dist. Court, D. Nevada 2014. Defendant City of San Antonio, then, having been timely served production requests that describe with “reasonably particularity” the records Plaintiff is seeking, continues to withhold virtually all of the documents responsive to that request past the discovery deadline set by the Court. This is illegal and sanctionable conduct, C. Plaintiff properly noticed the Depositions of Detectives Phelan and Freeman pursuant to the Courts’ Scheduling Order and Defendant San Antonio's arguments against proceeding are without merit. 20. The District Court “is vested with broad discretion to preserve the integrity and purpose of the pretrial scheduling order.” Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (Sth Cir. 1996). In it's Response to Plaintiff's Motion to Compel, Defendant City of San Antonio alleges that it will on the one hand be prejudiced by Plaintiff's 2! Amended Motion to Compel Discovery (COSA) 10 SACI4-CA-O073-DAEan extension of the discovery deadline, and on the other hand complains that the discovery deadline is not sufficient to allow the parties to adequately manage the amount of discovery that has already been taken place [Exhibit G, page 3, No. 4-5]. Plaintiff asserts that the City’s conflicting arguments here are proof that a modified scheduling order is in the best interest of justice. 21. Plaintiff is in compliance with the Court’s Scheduling Order. On October 27, 2014, Plaintiff served Notice of Subpoena deuces tecum to defendants’ counsel for San Antonio Police Department (SAPD) detectives James Phelan and Reginald Freeman. The subpoenas noticed Freeman's deposition for November 18, 2014 and Phelan’s deposition for November 19, 2014. Plaintiff successfully served process of the subpoenas deuces tecum on both men on November 5, 2014 pursuant to Federal Rule of Civil Procedure 45(c)(d)(e)(g). On November 4, 2014, City of San Antonio (SAPD) filed a motion to quash both subpoenas on the grounds of irrelevance [Doe. #44]. On November 18, 2014, Judge David A. Ezra entered an order denying Defendants’ Motion to Quash. Plaintiff received effective notice of the Court's Order denying Defendant's Motion to Quash on November 20, 2014. On November 20, 2014, Defendant City of San Antonio attempted to cajole Plaintiff into deposing their clients on the very next day, November 21, 2014, however, Plaintiff explained that she was busy rectifying technological issues that presented themselves during the November 12, 2014 deposition of SAPD Captain James Flavin. Flavin has been appointed as representative of the City of San Antonio - and oddly, Defendant COSA’s expert witness. When Plaintiff's recording equipment malfunctioned, Plainti’s nt Amended Motion to Compel Discovery (COSA) n ‘SAIECA-DIS-DAEDefense Counsel Michael Siemer and Mark Kosanovich began harassing, insulting and verbally attacking Plaintiff. Believing they were off the record, Kosanovich and Siemer mocked, and bullied Plaintiff in an apparent attempt to abruptly halt Captain Flavin’s deposition. [An audio clip of that attack is hereby attached on DVD-ROM as Exhibit J. and herein incorporated by reference] The person heard in the background mimicking Plaintiff is attorney for Defendant officers Mark Kosanovich; the person heard in the foreground demanding that Plaintiff leave the conference room without explanation is attorney for the City, Michael Siemer, [Affidavit of Denise McVea is hereby attached as Exhibit O and herein incorporated by reference]. This audio clip provides the actual behavior of Bexar County attorneys when they believe they are off the record. It is a striking contrast to the mild-mannered, soft-spoken, long-suffering performances they have perfected for use in open court. The audio clip also reveals that Siemer’s demand that Plaintiff leave the conference room was an unnecessary act of hostility toward Plaintiff because he later revealed in an email that the city had no shortage of conference rooms. [See Exhibit I, Bates No. 0035]. The abuse is even more disturbing because Kosanovich spent a sizeable part of Plaintiff's November 14, 2014 deposition inquiring about Plaintiff's status as a person who suffers from Post Traumatic Stress Disorder and General Anxiety Disorder. An excerpt from that deposition also documents Kosanovich's efforts to distress Plaintiff and Plaintiff's efforts to document his abuse. [Pages 1, 15-36, 108 of Oral Deposition of Denise McVea, November 14, 2014 is hereby attached as Exhibit K and herein incorporated Plaintif's 04 Amended Motion to Compel Discovery (COSA) 12 SAA4-CA-O073- DAEby reference.] This misconduct alone supports sanctions against defendant's counsel. D. Defendant's materially misrepresented discovery efforts to the Court, 22. As Exhibit I clearly shows, Plaintiff made consistent and substantial efforts at discovery and to communicate with opposing counsel. Plaintiff filed her first motion to compel on November 24, when it became clear that Defendant was stalling the discovery, particularly as it related to the depositions of SAPD detectives Phelan and Freeman. On November 18, 2014, defense counsel responded to Plaintiff's follow up requests for production with “Dear Ms. McVea: Please stop wasting my time.” [Exhibit I, Bates No. 00021]. Plaintiff filed the November 24, 2014 motion to compel because Defendant Counsel stated that defendant had supplied Plaintiff with all SAPD documents related to her, a blatant falsehood. [Exhibit I, Bates No. 23]. The email correspondence in this motions Exhibit I proves that Plaintiff's November 24, 2014 motion to compel was not “preemptory” as alleged by Defendant City of San Antonio, but a valid response to defendants unsavory efforts to withhold timely requested discovery. Defendant's selective omission of key email communications in its response to Plaintiff's Original Motion to Compel is an improper attempt to materially mislead the Court; those actions warrant sanctions. In effect, Defendant improperly withheld responsive production and depositions until the end of the discovery period and then refused to provide timely requested discovery stating that the discovery period had expired. That is sanctionable discovery abuse. Plaintiff's 4 Amended Motion to Compel Discovery (COSA) B ‘SAA-CA-O073-DAE23. Defendant City of San Antonio also materially misrepresented to the Court that Ms. McVea failed to respond to Defendant's attempts to schedule make up deposition dates for detectives Freeman and Phelan. However, Plaintiff gave notice to Defendant as early as November 19, 2014that a new video camera would not arrive until a day before Thanksgiving. She also informed counsel that she would be traveling and unavailable before the first week of December. [See Exhibit I, Bates No. 00029]. Until her noticed break, Plaintiff continued attempting to confer with Defendant Counsel but Defendant failed to reply. On November 24, 2014, Plaintiff gave proposed dates of December 3-4 and December 9-10, 2014. However, Defendant did not respond to that email until November 26. [Ibid. 0030]. Upon returning to her office on December 2, 2104, Plaintiff sent Siemer an email agreeing to his proposed dates and times for the detectives’ depositions, effectively mooting the issues raised in Defendant's motion, which at the time of her agreement had not been served on Plaintiff. However, Defendant refused to make the men available, preferring instead to attempt to materially misrepresent discovery activity in this cause, falsely informing the Court that Plaintiff had not responded to the City’s attempts to confer. As the email correspondence in Exhibit I reveals in unassailable detail, nothing could be further from the truth. 24. Defendant City of San Antonio's attempts to withhold the SAPD detectives’ depositions is a blatant exercise in sophistry. The Court had already ruled against the City’s motion to quash the detective's depositions when Defendant essentially attempted to condition the depositions of the detectives on Plaintiff agreeing to Plaintiff's 4 Amended Motion to Compel Discovery (COSA) 4 ‘SAA4-CA-OI7S-DAEforgo the hundreds of documents responsive to her timely filed production request that the Defendant was improperly withholding. [Exhibit I, Bates No. 0035, Nov. 26, 2104, at 2:59 pm]. This tactic is a gross abuse of the discovery process and should be sanctioned. Plaintiff OBJECTS to Defendant’s withdrawal of the detectives’ depositions after imposing what amounts to a four-hour deadline to comply with what is essentially an extortionist attempt to force Plaintiff to agree to forgo hundreds of relevant, timely requested production documents. (“Our office will be closed from 3 p.m. today {November 26, 2014} until 8:00 a.m Monday morning (December 1, 2014}) [Exhibit I, Bates No. 00034]. Further, Plaintiff argues that it is highly improper for Defendant to withhold relevant depositions because Defendants delayed complying through frivolous motions to quash and other improper tactics. Plaintiff agreed that the Plaintiff was scheduled to depose SAPD Detective James Phelan on December 9, 2014 and SAPD Detective Reginald Freeman on December 10, 2014 and limit those depositions in compliance with Fed. R. Civ.P. 30(d)(1) a week before the deposition dates. Further, Defendant's November 26' deposition proffer was not substantially different from Plaintiff's November 24 proffer - except that Defendant added the production extortion attempt. Therefore, Defendant materially misrepresented Plaintiff's positions and actions regarding scheduling those depositions to the Court. Withdrawing discovery compliance based on false and misleading statements filed in court constitutes discovery abuse and warrants sanctions. If there are any delinquencies. in the Scheduling Order as it relates to discovery, they are primarily a result of Plains 2¢ Amended Motion to Compel Discovery (COSA) 6 SAA4CA-O073-DAEaction or inaction on the part of Defendant. D. Sgt. Scott’s Call Log is responsive to Plaintiff's timely filed Request for Production. 25. As established earlier, Plaintiff timely requested production of documents from Defendant City of San Antonio on October 15, 2014, well before the November 24, 2014 Scheduling Order deadline. Defendant Scott’s call log would be among the documents being improperly withheld by Defendant City of San Antonio under Production Requests 7-8, in that it belongs to the class of documents described as follows: 26. “7. All police reports, incident reports, contact reports, investigatory reports, etc. related to 1614 Martin Luther King Drive, San Antonio, Texas 78203 since 1993”, and 27. “8, All police incident, contact, and investigatory reports related to the January 21, 2013 incident that is the basis for this cause of action” [EXHIBIT A, p.6]. 28. Production documents requested under Production Request 8, in particular, are described “with reasonable particularity” to meet the standards required by Fed. R. Civ. P. 34(b)(1)(A) & (B). By the City’s own assertions, Plaintiff's arrest was so routine that it generated very little documentation. Still, police policy conceivably requires at least some documentation when its officers arrest and imprison a citizen, Further, as Plaintiff alleged in her Amended Complaint, Plaintiff's 2 Amended Motion to Compel Discovery (COSA) 16 SA-14-CA-O07SDAEDefendant Officer Sgt. Scott told her directly that he would be calling Code Enforcement and the SAPD East Side Substation for guidance on how to proceed. [Exhibit O, No. His call log would be an easily identifiable record related to Plaintiff's arrest. Consequently, Plaintiff had timely made a “proper request” for the call log, and any other report generated relevant to her arrest. So far, Defendant City of San Antonio has provided only a portion of one such report, and continues to improperly withhold the rest. This knowingly improper withholding of relevant and timely requested production is an abuse of the discovery process and should be sanctioned. E. Defendant Has a Duty to Supplement Responses to Production Requests. 29. Defendant has a well-established duty to supplement its discovery response, pursuant to Rule 26 of the Federal Rules of Civil Procedure. The rule states in relevant part: “A party who has made a disclosure under Rule 26(a)—“or who has responded to... request for production,” or request for admission—must supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Fed. R. Civ. P. 26(e)(1)(A). Defendant City of San Antonio, purposely misrepresenting Plaintiff's request for production as a request for disclosure, argues that, 30. Federal civil discovery is intended to serve a "vital role" that would ‘narrow and clarify the basic issues between the parties, and... ascertaining the facts or Plainti’s 1 Amended Motion to Compel Discovery (COSA) v7 ‘SAA#CA-0073-DAEinformation as to the existence or whereabouts of facts, relative to those issues....[in order] for the parties to obtain the fullest possible knowledge of the issues and facts before trial." Hickman v. Taylor, 329 US. 495, 501 (1947).Rule 26(b)(1) of the Federal Rules of Civil Procedure provides for liberal discovery. St. Paul Reins. Co,, Ltd. v. Commercial Fin. Corp, 198 F.R.D. 508, 512 (N.D. Iowa 2000) (citations omitted). In part, it provides that, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”"[T] he burden is typically on the party resisting discovery to explain why discovery should be limited." Liberty Mut. Fire Ins. Co. v. Centimark Corp., 08CV230- DJS, 2009 WL 539927, at *1 (E.D. Mo. Mar. 4, 2009) (holding that Rules 26(b) and 34 provide for broad discovery) (citations omitted). “Thus, as long as the parties request information or documents relevant to the claims at issue in the case, and such requests are tendered in good faith and are not unduly burdensome, discovery shall proceed.” St, Paul Reins. Co., 198 F.R.D. at 511 (citing M. Berenson Co,, Inc. v. Faneuil Hall Marketplace, Inc., 103 F.R.D. 635, 637 (D. Mass. 1984)). See also Liberty ‘Mut. Fire Ins., 2009 WL 539927, at *1 (holding that requesting party need only make a “threshold showing of relevance” under Rule 26(b)). The party resisting production bears the burden of establishing lack of relevance or undue burden. St. Plaintiff's 24 Amended Motion to Compel Discovery (COSA) 18 ‘SAAI4-CA-O073-DAEPaul Reins. Co,, 198 F.R.D, at 511 (citations omitted). The objecting party “must demonstrate to the court ‘that the requested documents either do not come within the broad scope of relevance defined pursuant to Fed.R.Civ.P. 26(b)(1) or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Id.(quoting Burke v. New York City Police Dep't, 115 F.R.D. 220, 224 (S.D.N.Y.1987)). Plaintiff argues that Sgt. Scott's call log and the numerous other withheld documents are extremely relevant to the actions and conduct that led to Plaintiff's unlawful arrest because they provide a context for the constitutional deprivations Plaintiff complains of, F. Extraordinary Circumstances Requires that the Court Modify its Scheduling Order in the Interest of Justice. 31. _ In it’s response to Plaintiff's original motion to compel, Defendant City of San Antonio complained that Plaintiff “has completely failed to explain why she waited until the last minute to begin scheduling depositions.” This argument is without merit since the notices of depositions complied fully with the Court's scheduling order. However, in secking a modified scheduling order, Plaintiff hereby invokes the doctrine of “extraordinary circumstances.” Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances ... exist.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.2008). The moving party "must demonstrate both injury and circumstances beyond his control. . . ." Id. (internal Plaintif’s 24 Amended Motion to Compel Discovery (COSA) 19 ‘SAA4CA.O073-DAEquotation marks and citation omitted). Since at least 2010, Plaintiff has been the victim of official oppression, severe harassment, and repeated violations of her constitutional rights. Two months prior to filing this lawsuit, Plaintiff was unlawfully evicted from her place of business and tens of thousands of dollars of her assets illegally seized on the basis of fraudulent quitclaim deeds. [Doc. #45, Response to Motion to Quash and Exhibit C]. Additionally and in relation to that unlawful seizure, Plaintiff was attacked by one of the persons implicated in the fraud and then quickly arrested by SAPD officers despite a videotape showing that Plaintiff was the victim of attack and that the attacker made false misrepresentations to police. [A videotape showing the attack is hereby attached as Exhibit N and herein incorporated by reference] That arrest culminated in malicious prosecution of Plaintiff, which -- despite ample evidence in Plaintiff's favor and no evidence to support continued prosecution -- is ongoing. In Texas ». ‘McVea, Cause No. 443420, San Antonio Defense Attorney Joe Gonzales charged Plaintiff $3500 to represent hear at the pretrial level, and then after receiving payment, informed Plaintiff that he would not take action to represent her until a trial date was set, at which point, he informed her, she would have to pay him an additional $3000 before he would take action on her behalf. [Plaintiff's pro se Defendant's Amended Motion to Set Aside Indictment or Information And Motion for Dismissal, filed on March 27 2014 in Bexar County Court NO. 12, Judge Scott Roberts presiding, is hereby attached as Exhibit L and herein incorporated by reference] Plaintiff's letter to former Bexar County assistant district attorney Plaintiffs 4 Amended Motion to Compel Discovery (COSA) 20 SAA4-CA-0073-DAE.Matthew Ludowig is here by attached as Exhibit M and herein incorporated by reference] Plaintiff attaches this evidence for the singular purpose of demonstrating that Plaintiff has been under undue hardship of an extraordinary nature for the duration of this lawsuit. Plaintiff argues that these extraordinary circumstances have substantially contributed to the need for a modified scheduling order in the interest of justice. Barring extraordinary circumstances, Plaintiff seeks relief because despite the unseemly attacks against her, Plaintiff continues to demonstrate diligence in the discovery process. Pursuant to Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause" standard "primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc,, 975 F.2d 604, 609 (9th Cir. 1992). The district court may modify the scheduling order "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. If the party was not diligent, the inquiry should end. Id. Plaintiff's diligence, even under the extraordinary burden of being the target of sustained harassment and official oppression, is apparent. Her delay in beginning discovery is a direct result of being the falsely accused of a crime, of having her entire organizational assets illegally seized, of being repeatedly assaulted and then arrested on pretexts, and being the target of a criminal conspiracy to harm since at least 2010. VI. CONCLUSION In short, Defendant City of San Antonio continues to improperly withhold Plaintiff's 24 Amended Motion to Compel Discovery (COSA) 2 SAA-CA-0073 DAEtimely served production requests and burden Plaintiff with abusive and unethical discovery tactics. Defendant's failure to produce documents has hampered the Plaintiff's discovery, prevented her from setting and preparing for depositions, and improperly denied her key information relevant to this cause. Consequently, Plaintiff respectfully asks this Court to order Defendant City of San Antonio to promptly and completely comply with Plaintiff's timely Requests for Production of Documents, to make Phelan and Freeman available for deposition by a date certain if they have not done so already, to modify the Court’s Scheduling Order so that discovery may be completed in a way that ensures that justice be done, grant a hearing (“So long as a hearing is given before any proceeding is concluded to enforce the production of the papers, due process of law is afforded.” Simon v. Craft, 182 US. 427; Wilson v. Standefer, 184 US. New Orleans Waterworks Co. v. Louisiana, 185 U.S. 336, 349), sanction Defendant City of San Antonio for discovery abuse and grant Plaintiff any such further relief to which she may show herself to. be justly entitled DATED: December 15, 2014 Respectfully submitted: (2. me Denise McVea, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.org Plainti’s 24 Amended Motion to Compel Discovery (COSA) 2 ‘SAAS-CA-O073-DAECERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing instrument was electronically served on the 15th day of December, 2014 via e-filing, facsimile, digital transmission or USPS Mail to the following: Mark Kosanovich Fitzpatrick & Kosanovich PO Box 831121 San Antonio, Texas 78283-1121 COUNSEL FOR SAPD OFFICERS (210)207-7259 mk@fitzkoslaw.com Michael Siemer Assistant City Attorney Office of the City Attorney Litigation Division 111 Soldedad, 10" Floor San Antonio, Texas 78205 michael siemer@sanantonio.gov we x. Denise McVea, PRO SE 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.org Plains 2¢ Amenided Motion to Compel Discovery (COSA) 23 SAA4CA-0073-DAEEXHIBIT AEXHIBIT UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, Plaintiff; CASE NO. v SAPD OFFICER T. SWAN, SAPD SA-14-CA-0073-DAE. OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT., CITY OF SAN ANTONIO, Defendants. PLAINTIFF DENISE MCVEA’S REQUEST FOR PRODUCTION OF DOCUME! TO: Defendant San Antonio Police Department through its attorney Michael Siemer, Assistant City Attorney, Office of the City Attorney, Litigation Division, 111 Soledad, 10° Floor, San Antonio, Texas 78205. I. INSTRUCTIONS 1, Pursuant to Rule 34 of the Federal Rules of Civil Procedure (FRCP), Plaintiff Denise McVea submits the following request for production of documents from San Antonio Police Department. 2. Pursuant to FRCP Rule 34(a), Plaintiff acknowledges that these requests are limited to the scope of FRCP Rule 26(b), and requests that when Defendant is unable to produce certain documents because they fall outside of such scope, Defendant will provide a brief explanation as to the reason why the documents fall outside the scope of the request 3, If certain requests are duplicative of previous requests to which documents have Plains Amended Complaint/ SA-14CA-0073-DAE 1EXHIBIT already been produced, Defendant need not reproduce such documents but is requested to notify Pleintiff that such documents are among those already produced. 4, Pursvant to FRCP Rule 34(b)(2)(E), Plaintiff requests that when Defendant does produce the requested documents, including electronically stored information (ES1), Defendant will produce such documents or ESI as they are Kept in the usual course of business or will organize and label them to correspond to the categories in the request. 5. Plaintiff requests that Defendant make a good faith effort to produce any and all requested documents that are readily ascertainable from Defendant SAPD. DEFINITIONS ‘A.“‘Agreement,” “Agreement in dispute,” and “contract” means the understanding between SAPD and the SAPD's officer union, whether alleged or actual, oral or written. B. The words “any” and “all” shall be read in the conjunctive and not in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of @ request. Furthermore, the use of a verb in any tense shall be construed as the use of the verb in all other tenses and the singular form shall be deemed to include the plural, and vice- versa, The singular form of any noun shall be deemed to include the plural, and vice-versa. C. “Communication” and “communications” means any and all inquiries, discussions, conferences, conversations, negotiations, agreements, meetings, interviews, telephone conversations, letters correspondence, notes, telegrams, facsimiles, electronic mail (email), memoranda, documents, writings, or other forms of communications, including but not limited to both oral and written communications. D."“Copies of” as set forth in the Instructions to this motion means authentic duplicates Plains 1 Amended Complsnt/ SA-14-CA-0073-DAE 2EXHIBIT "A’ of the originals as noted, kept, maintained, and organized by Defendant in the ordinary course of business. E, “Plaintiff” means Denise McVea. F. “Discussion,” “discussions,” “discuss,” “discusses,” “mention,” “mentions,” “describe,” “describes,” “analyze” or “analyzes” means any and all inquiries, conferences, conversations, negotiations, agreements or other forms or methods of oral communication or such dialogue sent via e-mail, facsimile, leter, telegram, or other written communication. G. “Document,” “documents,” “ internal communication,” “intemal communications,” “record,” “records,” “written communication,” “written communication,” and “written correspondence” means all data, papers, and books, transcriptions, pictures, drawings or diagrams or every nature, whether transcribed by hand or by some mechanical, electronic, photographic or other means, as well as sound reproductions of oral statements or conversations by whatever means made, including written papers or memoranda which summarize oral conversations, whether in your actual or constructive possession or under your control or not, relating to or pertaining to or in any way to the subject matters in connection which it is used and includes originals, all file copies, all other copies, no matter how prepared and all drafts prepared in connection with such writing, whether used or not, including by way of illustration and not by way of limitation, the following: books; records; reports; contracts; agreements; video, audio and other electronic recordings; memoranda (including written memoranda of telephone conversations, other conversations, discussions, agreements, acts and activities); minutes; diaries; calendars; desk pads; scrapbooks; notes; ; electronic mail (e-mail); facsimiles; circulars; notebooks; correspondence; drafts; bulletin forms; pamphlets; notice; statements; journals; postcards; letters; telegrams; publications;inter-and intra- office communications; photocopies; microfilm; maps; drawings; diagrams; sketches; analyses; transcripts; electronically stored information (ESI) and any other documents within Defendant’s possession, custody or control from which information can be obtained or translated, if necessary, by detection devices into reasonably usable form, ie. typed in English. HL. “Blectronically stored information” and “ESI” means any information on operational systems including accounting, financial, distribution, or manufacturing systems; E-mail; Instant Messages (IM); Web pages; text messages; cell phone data; Excel spreadsheets and underlying formulae; metadata; computer databases (i.c., Access); erased, fragmented or damaged data; Blackberry data; and anything stored on computer or other electronic means located on or in, but not limited to cache memory; optical disks; magnetic tapes/back-up tapes; magnetic disks (hard drive, floppy disks, ete.); PDAs, iPhones, smartphones, tablets, Blackberries and Palm Pilots; cell phones; IM tools; or USB drives. I. The words “or” and “and” shall be read in the conjunctive and not in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of a request. The use of a verb in any tense shall be construed as the use of the verb in all other tenses and-the singular form shall be deemed to include the plural, and vice-versa. The singular form of any noun shall be deemed to include the plural, and vice-versa. J. “Request,” and “Requests” mean and are limited to the numerical requests set forth in this motion for production of documents.” K. “SAPD,” “You,” and “Defendant” mean the Defendant San Antonio Police Department (SAPD) answering this civil action and any and all of its agents, representatives, employees, servants, unions, consultants, contractors, subcontractors, investigators, attorneys, and any Plaintfs 14 Amended Complaint/ SA-16-CA-0073-DAE 4other persons or entities acting or purporting to act on behalf of the Defendant SAPD. L. “Internal Affairs” means the Internal Affairs Department (IA) of Defendant SAPD. DOCUMENT REQUESTS 1. Any and all written correspondence between SAPD and Defendant officers between January, 2013 and the present date that relate directly to the January 21,2013 incident that is the basis for the above styled and numbered cause. 2. Complete and entire personnel records of Defendant officers named in this suit, including ns but not limited to probationary evaluation reports, performance rating reports, supervis evaluation reports, psychological reports, application for appointment and declaration of pending criminal action, and constitutional oath upon appointment. 3. Any and all internal communications between January 21, 2013 and the present date between any of the following parties: Det. Freeman, Sgt. Pelfry, Sgt. Scott, Officer Swan, Officer Barrajas (or Barajas), Eastside Substation Officer Mendoza, and Det. Phelan relating to the January 2013 incident that is the basis for this cause of action. 4. Any and all operational procedures manuals for SAPD patrol officers and their supervisors. 5. Complete and entire Internal Affairs reports involving the SAPD defendant officers named in this suit. 6. Any Internal Affairs reports outlining the names and rank, and duty assignment of SAPD police officers temporarily suspended because of complaints of misconduct pending investigation of said complaint between January 1, 2005 and the present date. Plaintiff prefers this data be provided in electronic or digital database file format. Plains 14 Amended Complain'/ SA-14.CA-0073-DAE 56. Any and all training materials of SAPD officers, including but not limited to manuals, records relating to workshops, seminars, required continuing education modules, periodic training sessions and reviews. 7. All police reports, incident reports, contact reports, investigatory reports, etc, related to e, San Antonio, Texas 78203 since 1993. 1614 Martin Luther King Ds ‘ident, contact, and investigatory reports related to the January 21, 2013 8. All police incident that is the basis for this cause of action. 1. The contract/agreement and any and all modified agreements/amendments/addendums to the contract between SAPD, the City of San Antonio, and the San Antonio Police Officer's Association. For the past five years. 12, Any and all internal records of written or oral communication between or among SAPD and the San Antonio Police Officer's Association, its executive board, board of directors or president and the City of San Antonio regarding SAPD Internal Affairs investigations of police misconduct since 2010. Respectfully submitted: Lon Denise McVea, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.org Psiniffe 1 Amended Complait/ SA-14-CA-073-DAE 6EXHIBIT "A" CERTIFICATE OF SERVICE The undersigned hereby certifies that « copy of the foregoing instrument was electronically served onthe 15th day of October, 2016 vi esiling fsesimile, digital transmission or USPS Mail to the following: Ob Mark Kosanovich Fitzpatrick & Kosanovich PO Box 831121 San Antonio, Texas 78283-1121 COUNSEL FOR SAPD OFFICERS (210)207-7259 Michael Siemer Assistant City Attorney Office of the City Attorney Litigation Division 111 Soldedad, 10" Floor San Antonio, Texas 78205 wen x, Denise MeVea, PRO SE 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmovea@aurisproject.or; Plaintfs1# Amended Complaint/ SA-14-CA.0O72-DAE 7EXHIBIT BUNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, § Plaintiff; 5 § v. § CASE NO. é SAPD OFFICER T. SWAN, SAPD § SA-14-CA-0073-DAE OFFICER SCOTT, SAPD OFFICER § BARRAJAS (OR BARAJAS), § UNKNOWN OFFICER 1, SAN § 7 ANTONIO POLICE DEPT., CITY OF § } SAN ANTONIO, § URIGINA| Defendants. PLAINTIFF DENISE MCVEA’S FIRST SUPPLEMENTAL REQUEST FOR PRODUCTION OF DOCUMENTS TO: Defendant San Antonio Police Department through its attorney Michael Siemer, Assistant City Attorney, Office of the City Attorney, Litigation Division, 111 Soledad, 10 Floor, San Antonio, Texas 78205. COMES NOW, Plaintiff Denise McVea, and hereby supplements her First Request for Document Production of Oct. 15,2014 and requests that defendant SAPD also produce the following documents: pplemental Document Request 13. A full and complete survey of records related to communications between Denise MeVea and SAPD. 14. Any and all records or reports involving Denise McVea in the custody of the San Antonio Police Department, including but not limited to calls for service, emergency and non- Plaintifs 1 Amended Complint/ SA-14-CA-0073-DAE 1emergency calls to 911 dispatch, all complaints, requests for investigation, Internal Affairs documents, photos, fingerprints, DNA, in essence, any record kept by San Antonio Police Department in its regular course of business that records its interaction or communication in any way with Plaintiff in any and call capacities between 2006 and the present date. Respectfully submitted: 2 Denise McVea, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.org Plaintiffs 1 Amended Complaint/ SA-14-CA-0073-DAB. 2CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing instrument was electronically served on the 17th day of October, 2014 via e-filing, facsimile, digital transmission or USPS Mail to the following: Mark Kosanovich Fitzpatrick & Kosanovich PO Box 831121 San Antonio, Texas 78283-1121 COUNSEL FOR SAPD OFFICERS (210)207-7259 Michael Siemer Assistant City Attorney Office of the City Attorney Litigation Division 111 Soldedad, 10" Floor San Antonio, Texas 78205 Lo ae Denise McVea, PRO SE 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmovea@a 0) Piaintifs 14 Amended Complaint/ SA-14-CA.0073-DAEEXHIBIT CUNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS ORIGINAL DENISE MCVEA, Plaintiff; v. CASE NO. SAPD OFFICER T. SWAN, SAPD SA-14-CA-0073-DAE OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT., CITY OF SAN ANTONIO, Defendants. PLAINTIFF DENISE MCVEA’S 2“ SUPPLEMENTAL REQUEST FOR PRODUCTION OF DOCUMENTS TO: Defendant San Antonio Police Department through its attorney Michael Siemer, Assistant City Attorney, Office of the City Attorney, Litigation Division, 111 Soledad, 10" Floor, San Antonio, Texas 78205. I. INSTRUCTIONS 1. Pursuant to Rule 34 of the Federal Rules of Civil Procedure (FRCP), Plaintiff Denise McVea submits the following request for production of documents from San Antonio Police Department. 2. Pursuant to FRCP Rule 34(a), Plaintiff acknowledges that these requests are limited to the scope of FRCP Rule 26(b), and requests that when Defendant is unable to produce certain documents because they fall outside of such scope, Defendant will provide a brief explanation as to the reason why the documents fall outside the scope of the request. 3. If certain requests are duplicative of previous requests to which documents have Plaintfs 1 Amended Complaint/ SA-14-CA-OO7%-DAE 1already been produced, Defendant need not reproduce such documents but is requested to notify Plaintiff that such documents are among those already produced, 4, Pursuant to FRCP Rule 34(b)(2)(E), Plaintiff requests that when Defendant does produce the requested documents, including electronically stored information (ESI), Defendant will produce such documents or ESI as they are kept in the usual course of business or will organize and label them to correspond to the categories in the request. 5 Plaintiff requests that Defendant make a good faith effort to produce any and all requested documents that are readily ascertainable from Defendant SAPD. DEFINITIONS pute,” and “contract” means the understanding between A. “Agreement,” “Agreement SAPD and the SAPD’s officer union, whether alleged or actual, oral or written. B. The words “any” and “all” shall be read in the conjunctive and not in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of « request. Furthermore, the use of a verb in any tense shall be construed as the use of the verb in all other tenses and the singular form shall be deemed to include the plural, and vice- versa. The singular form of any noun shall be deemed to include the plural, and vice-versa C. “Communication” and “communications” means any and all inquiries, discussions, conferences, conversations, negotiations, agreements, meetings, interviews, telephone conversations, letters correspondence, notes, telegrams, facsimiles, electronic mail (email), memoranda, documents, writings, or other forms of communications, including but not limited to both oral and written communications. D. “Copies of as set forth in the Instructions to this motion means authentic duplicates Plaintiff 1 Amended Complaint/ SA-14-CA-0073-DAB 2of the originals as noted, kept, maintained, and organized by Defendant in the ordinary course of business. E. “Plaintiff” means Denise McVea. F. “Discussion,” “discussions,” “discuss,” “discusses,” “mention,” “mentions,” “describe,” “describes,” “analyze” or “analyzes” means any and all inquiries, conferences, conversations, negotiations, agreements or other forms or methods of oral communication or such dialogue sent via e-mail, facsimile, letter, telegram, or other written communication. G. “Document,” “documents,” “ internal communication,” “internal communications,” “record,” “records,” “written communication,” “written communication,” and “written correspondence” means all data, papers, and books, transcriptions, pictures, drawings or diagrams or every nature, whether transcribed by hand or by some mechanical, electronic, photographic or other means, as well as sound reproductions of oral statements or conversations by whatever means-made, including written papers or memoranda which summarize oral conversations, whether in your actual or constructive possession or under your control or not, relating to oF pertaining to or in any way to the subject matters in connection which it is used and includes originals, all file copies, all other copies, no matter how prepared and all drafts prepared in connection with such writing, whether used or not, justration and not by way of limitation, the following: books; records; including by way of reports; contracts; agreements; video, audio and other electronic recordings; memoranda (including written memoranda of telephone conversations, other conversations, discussions, ‘ies; calendars; desk pads; scrapbooks; notes; agreements, acts and activities); minutes; iles; circulars; notebooks; correspondence; drafts; bulletins; electronic mail (e-mail); facsi forms; pamphlets; notice; statements; journals; posteards; letters; telegrams; publications; Plaintifs 14 Amended Complaint/ SA-14-CA-0073-DAE 3inter-and intra- office communications; photocopies; microfilm; maps; drawings; diagrams; sketches; analyses; transcripts; electronically stored information (ESI) and any other documents within Defendant's possession, custody or control from which information can be obtained or translated, if necessary, by detection devices into reasonably usable form, i. typed in English H1. “Electronically stored information” and "ESI” means any information on operational systems including accounting, financial, distribution, or manufacturing systems; E-mail; Instant Messages (IM); Web pages; text messages; cell phone data; Excel spreadsheets and underlying formulae; metadata; computer databases (i.e., Access); erased, fragmented or damaged data; Blackberry data; and anything stored on computer or other electronic means located on of in, but not limited to cache memory; optical disks; magnetic tapes/back-up tapes; magnetic disks (hard drive, floppy disks, ete); PDAs, iPhones, smartphones, tablets, ell phones; IM tools; or USB drives. Blackberries and Palm Pilots; L. The words “or” and “and” shall be read in the conjunctive and not in the disjunctive wherever they appear, and neither of these words shall be interpreted to limit the scope of a request. The use of a verb in any tense shall be construed as the use of the verb in al other tenses and the singular form shall be deemed to include the plural, and vice-versa. The singular form of any noun shall be deemed to include the plural, and vice-versa J. "Request," and “Requests” mean and are limited to the numerical requests set forth inthis ion of documents. motion for produ K.“SAPD." “You,” and “Defendant” mean the Defendant San Antonio Police Department (SAPD) answering this civil action and any and all of its agents, representatives, employees, servants, unions, consultants, contractors, subcontractors, investigators, attorneys, and any Plaintifs 14 Amended Compllnt/ SA-14-CA.007S-DAB 4other persons or entities acting or purporting to act on behalf of the Defendant SAPD. L. “Internal Affairs” means the Internal Affairs Department (IA) of Defendant SAPD. DOCUMENT REQUESTS 1. Any and all Documents related to the housing, booking, detention, custody, and release of Denise McVea between 2008 and the present date at the 200 North Comal Street, 401 South Frio Detention/Municipal building complex, San Antonio, TX 78207. 2. Booking Manual for the above mentioned detention facility()(ies) and other Bexar County facilities 3. List of any and all magistrates who have convened due process hearings at the above mentioned facilit(y)(ies) between 2008 and the present date. 4, Any and all booking sheets of all female inmates arrested and detained at the above mentioned facility(y)(ies) between January 19,2013 and January 22, 2013 Respectfully submitted: Kbd Ab Denise MeVea, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject org Flaintifs 1 Amended Complaint/ SA-14-CA-0072-DAE. 5CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing instrument was electronically served on the 4th day of November, 2014 via e-filing, facsimile, digital transmission or USPS Mail to the following: Mark Kosanovich Fitzpatrick & Kosanovich PO Box 831121 San Antonio, Texas 78283-1121 COUNSEL FOR SAPD OFFICERS (210)207-7259 Michael Siemer Assistant City Attorney Office of the City Attorney Litigation Division 111 Soldedad, 10" Floor San Antonio, Texas 78205 Dn x. Denise McVea, PRO SE 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.ors Plaintiffs Amended Complaint/ SA-14-CA-0073-DAE.EXHIBIT DIN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DENISE MCVEA, § Plaintiffs), § § v. § SA-14-CV-00073-DAE § OFFICER T. SWAN; OFFICER SCOTT; § OFFICER BERNAL; UNKNOWN OFFICER #1; AND SAN ANTONIO POLICE DEPARTMENT, Defendant(s) § DEFENDANT, CITY OF SAN ANTONIO'S RESPONSES AND. PLAINTIFF'S REQUEST FOR PRODUCTIO‘ TO: Denise McVea, Plaintiff, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 The City of San Antonio, Defendant in the above styled and numbered cause, files the attached Responses and Objections to Plaintiff's Request for Production, Respectfully Submitted, CITY OF SAN ANTONIO. Robert F. Greenblum, City Attorney SBN: 08390430 Office of the City Attorney Litigation Division 111 Soledad St., 10" Floor San Antonio, TX 78205 Michaef D. Siemer Assistant City Attorney Bar No: 18343670 (210) 207-8784/ (210) 207-4357 Fax Michael. Siemer@sanantonio.gov ATTORNEY FOR DEFENDANT, CITY OF SAN ANTONIO MeVea~ COSA'S Responses to RFP Page 1 of 5CERTIFICATE OF SERVICE hy I hereby certify that on the 4 of November, 2014, the foregoing has been served to the following interested person by: Denise Mevea 1006 Wyoming St. San Antonio, Texas 78203 Mark Kosanovich Mark Kosanovich, L.P. P.O, Box 831121 San Antonio, Texas 78283-1121 mgoo0oma Fax CMRRR Hand Delivery Fax CMRRR Hand Delivery, MICHAEL D. SIEMER ‘MeVea ~ COSA’s Responses to RFP Page 2 of 5DEFENDANT CITY OF SAN ANTONIO’S RESPONSES AND OBJECTIONS TO PLAINTIFF'S REQUEST FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: ‘Any and all written correspondence between SAPD and Defendant officers between January , 2013 and the present date that relate directly to the January 21,2013 incident that is the basis for the above styled and numbered cause. RESPONSE: None that this Defendant is aware of. REQUEST FOR PRODUCTION NO. 2: ‘Complete and entire personnel records of Defendant officers named in this suit, including but not Timited to probationary evaluation reports, performance rating reports, supervisor's evaluation reports, psychological reports, application for appointment and declaration of pending criminal action, and constitutional oath upon appointment. OBJECTION: Defendant objects to this request for production on the basis that the information requested is irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence. REQUEST FOR PRODUCTION NO. 3: ‘Any and all internal communications between January 21, 2013 and the present date between any of the following parties: Det. Freeman, Sgt. Pelfty, Sgt. Scott, Officer Swan, Officer Barrajas (or Barajas), Eastside Substation Officer Mendoza, and Det. Phelan relating to the January 2013 incident that is the basis for this cause of action. RESPONSE: None that this Defendant is aware of. REQUEST FOR PRODUCTION NO. 4: ‘Any and all operational procedures manuals for SAPD patrol officers and their supervisors. RESPONSE: Plaintiff is referred to a copy of the SAPD General Manual-Exhibit “B” which was previously produced under City of San Antonio’s Initial Disclosures (bates nos. 000012). REQUEST FOR PRODUCTION NO. 5: Complete and entire Intemal Affairs reports involving the SAPD defendant officers named in this suit. OBJECTION: Defendant objects to this request on the basis that it is too vague and overbroad. Defendant further objects that this request for production, is not reasonably limited in time and scope. Further, Defendant objects to this request for production, in that it seeks discovery of matters, things, or information which is not relevant or material to the subject matter in the pending litigation, nor is such discovery reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to providing information regarding unfounded allegations against the Defendant Officers. Furthermore, objection is Mevea — CSA's Responses to RFP Page 3 of 5made pursuant to the Texas Government Code, Chapter 552, Sections 552.102, 552.103, 552.108, 552.117 and 552.119. Defendant further objects under the Texas Local Government Code, Chapter 143, Sections 143.089 and 143.1214. Defendant also objects to the extent that said request violates the privacy interests of third persons not party to this lawsuit. RESPONSE: Subject to and without waiving said objections, Plaintiff is referred to Exhibit “C” -Internal Affairs file of Officer Swan (bates nos. 000013-000083) and Exhibit “PD” — Internal Affairs file of Sgt. Scott (bates nos. 000084-000190). REQUEST FOR PRODUCTION NO. 6: ‘Any Internal Affairs reports outlining the names and rank, and duty assignment of SAPD police officers temporarily suspended because of complaints of misconduct pending investigation of said complaint between January 1, 2005 and the present date. Plaintiff prefers this data be provided in electronic or digital database file format. RESPONSE: Plaintiff is referred to a spreadsheet attached hereto as Exhibit “E” (bates nos. 000191-000194). REQUEST FOR PRODUCTION NO. 6: *** numbered #6 twice) ‘Any and all training materials of SAPD officers, including but not limited to manuals, records relating to workshops, seminars, required continuing education modules, periodic training sessions and reviews. OBJECTION: Defendant objects to this request for production on the basis that the information requested is irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence. In this connection, Defendant would show that this request is not properly limited in time and scope. Moreover, the only relevant consideration regarding a “failure to train” allegation is the adequacy of TCOLE (formerly “TECLEOSE”) training standards. O’Neal v. City of San Antonio, 344 Fed. App’x 885 (5" Cir. 2009). RESPONSE: Subject to said objection and still insisting on the same, Plaintiff is referred to Exhibit “F” —Texas Basie Peace Officer Course Outline and the San Antonio Police Academy Course outline (bates nos. 000195-000229). REQUEST FOR PRODUCTION NO. {All police reports, incident reports, contact reports, investigatory reports, ete, related to 1614 Martin Luther King Drive, San Antonio, Texas 78203 since 1993. OBJECTION: Defendant objects to this request for production on the basis that the information requested is irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence. In this connection, Defendant would show that it is not properly limited to a relevant period of time. WMeVea~ COSA'S Responses to RFP Page 4 of 5RESPONSE: Subject to said objection and still insisting on the same, Plaintiff is referred to Exhibit “G - police reports pertaining to 1614 Martin Luther King Drive, San Antonio, Texas 78203 since 2011 (bates nos. 000230-000244), REQUEST FOR PRODUCTION NO. 8: Al police incident, contact, and investigatory reports related to the January 21, 2013 incident that is the basis for this cause of action, RESPONSE: Plaint referred to Exhibit “A” - which was previously produced under City of San Antonio’s Initial Disclosures (bates nos. 000001-000011). Requests for Production Numbers 9 and 10 were omitted by Plaintiff. seeer REQUEST FOR PRODUCTION NO. 11: The contracvagreement and any and all modified agreements/amendments/addendums to the contract between SAPD, the City of San Antonio, and the San Antonio Police Officer's ‘Association. For the past five years. RESPONSE: Plaintiff is referred to the current Exhibit “H”-Collective Bargaining Agreement (bates nos. 000245-000458). REQUEST FOR PRODUCTION NO. 12: Any and all internal records of written or ‘oral communication between or among SAPD and the San Antonio Police Officer's Association, its executive board, board of directors or president and the City of San Antonio regarding SAPO Internal Affairs investigations of police misconduct since 2010. OBJECTION: Defendant objects to this request for production on the basis that the information requested is irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence. MeVea~ COSA’ Responses to RFP Page 5 of 5MeVea v. COSA W"Genipie 6 (00013-00003) Bentbit D [000084-0000190) CS pebibLt B (00191-00194) ‘Bxnibit F (00195-00229) \\ixhibie @ (000230-000244) \Siaxhabit # (000245-000858), Bxnsbit. T [000%59-000874) ‘Bxhibit J (000475-000809) Exnibit K, K1 {000490-000559)EXHIBIT EIN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DENISE MCVEA, § Plaintiff(s), § v. ; SA-14-CV-00073-DAE OFFICER T. SWAN; OFFICER SCOTT; § OFFICER BERNAL; UNKNOWN, OFFICER #1; AND SAN ANTONIO POLICE DEPARTMENT, Defendant(s) § DERENDANT, CITY OF SAN ANTONIO’S RESPONSES AND OBJECTIONS TO PLAINTIFF'S FIRST SUPPLEMENTAL REQUEST FOR PRODUCTION TO: Denise McVea, Plaintiff, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 The City of San Antonio, Defendant in the above styled and numbered cause, files the attached Responses and Objections to Plaintiff's Request for Production. Respectfully Submitted, CITY OF SAN ANTONIO Robert F. Greenblum, City Attorney SBN: 08390430 Office of the City Attorney Litigation Division 111 Soledad St., 10" Floor San Antogflo, TX 78205 Michael D. Siemer Assistant City Attorney Bar No: 18343670 (210) 207-8784/ (210) 207-4357 Fax Michael. Siemer@sanantonio.gov ATTORNEY FOR DEFENDANT Wevea— COSA's Responses to Ps Suppl REP Page 1 of 3CERTIFICATE OF SERVICE Thereby certify that on wnoltPor November, 2014, the foregoing has been served to the following interested person by: Denise Mevea OO Fax 1006 Wyoming St. San Antonio, Texas 78203 { cMRRR (Hand Delivery Mark Kosanovich O Fax Mark Kosanovich, L.P. P.O, Box 831121 OO cwerr San Antonio, Texas 78283-1121 PZ Hand Delivery MICHAEL D. SIEMER WeVea—COSA’s Responses to Ps 1 Suppl REP Page 2 of 3DEFENDANT, CITY OF SAN ANTONIO’S RESPONSES AND OBJECTIONS TO PLAINTIFF'S FIRST SUPPLEMENTAL REQUEST FOR PRODUCTION REQUEST FOR PRODUCTION NO. 13: ‘A full and complete survey of records related to communications between Denise McVea and SAPD. OBJECTION: Defendant objects to this request for production on the grounds that it is too vague, ambiguous and confusing. RESPONSE: This Defendant is not aware of any “survey” of records related to communication between Denise MeVea and SAPD. REQUEST FOR PRODUCTION Ni 4: ‘Any and all records or reports involving Denise McVea in the custody of the San Antonio Police Department, including but not limited to calls for service, emergency and non-emergency calls t0 911 dispatch, all complaints, requests for investigation, Intemal Affairs documents, photos, fingerprints, DNA, in essence, any record kept by San Antonio Police Department in its regular course of business that records its interaction or communication in any way with Plaintiff in any and call capacities between 2006 and the present date. RESPONSE: Plaintiff is referred to Exhibit “I” Incident Detail Reports for the current year (bates nos. 000459-000474); Exhibit “J” Internal Affairs Info (bates nos. 0004 1300489); Exhibit “K” IA FC2010-099 (bates nos. 000490-000531); and Exhibit Kot Misc (hates nos. 000532-000559) and radio calls/dispatch (324193-111058-1104 — Sorrell; 324193- 11107-1113 — Sorrell; 324193-111117-1123 — Sorrell; 324193-111058-1104 ~ Sorrell: 324193-1101-29 — Sorrell-clerk). MoVea=COSA’s Responses to Ps 1” Suppl REP Page 3 of 3EXHIBIT FUNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, Plaintiff; v. CASE NO. SAPD OFFICER T. SWAN, SAPD SA-14-CA-0073-DAE OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT., CITY OF SAN ANTONIO, Defendants. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSE COMES NOW Plaintiff Denise McVea and files this Motion to Compel Discovery Response and would show the Honorable Court the following: 1. This is a suit for violations of the Plaintiff's civil rights as protected by the Constitution and laws of the United States of America under the Fourth and Fourteenth Amendments of the US. Constitution, 42 U.S.C. § 1983 and 42 US.C 1985(2)(3). Plaintiff filed suit against defendants the City of San Antonio (aka San Antonio Police Department), SAPD Officer T. Swann, SAPD Sgt. Scott, and various other officers related to an alleged illegal search and seizure at her place of business on or about January 21, 2013. Plaintiff alleges that the officers had no probable cause to arrest Plaintiff, they had no legal authority to seize her belongings, that they failed to present her before a magistrate after illegally imprisoning her, and that they maliciously prosecuted her after failing to show probable cause for her Plain’ Response to Defendants’ Motions to Quash Deposition/Freeman/ Phelan/ SA-14-CA-0073-DAB. 1arrest and detention. Plaintiff further charges that the officers and SAPD demonstrated that they knew the arrest and detention were illegal and a violation of Plaintiff's Constitutional rights when they knowingly prevented her from being seen by a magistrate, and when they dropped the charges against her on the day of trial, Plaintiff further alleges that when Defendants arrested, imprisoned, and maliciously prosecuted her without probable cause, they joined an ongoing conspiracy to violate Plaintiff's constitutional rights in violation of the laws of the United States of America. 2. Pursuant to the July 25, 2014 Scheduling Order filed in this cause of action, the discovery period in this cause ends on November 24, 2014. Depositions of Phelan and Freeman 3. Plaintiff contends that City of San Antonio continues to deprteive Plaintiff pro se of the testimony of Det. Phelan and Det. Freeman in violation of Federal Rule of Procedure 26. 4. On October 27, 2014, Plaintiff served Notice of Subpoena deuces tecum to defendants’ counsel for San Antonio Police Department (SAPD) detectives James Phelan and Reginald Freeman. The subpoenas noticed Freeman's deposition for November 18, 2014 and Phelan’s deposition for November 19, 2014. Plaintiff successfully served process of the subpoenas dewces tecum on both men on November 5, 2014 pursuant to Federal Rule of Civil Procedure 45(c)(d)(e)(g). 5. On November 4, 2014, City of San Antonio (SAPD) filed a motion to quash Plaintiff's Response to Defendants’ Motions to Quash Deposition/Freeman/Phelan/ SA-14-CA-0073-DAE 2both subpoenas on the grounds of irrelevance [Doc. #44]. 6 On November 18, 2014, Judge David A. Ezra entered an order DENYING Defendants’ Motion to Quash. 7. Plaintiff received effective notice of the Court’s Order denying Defendant's Motion to Quash on November 20, 2014. 8 On November 20, 2014, Defendant City of San Antonio attempted to cajole Plaintiff into deposing their clients on the very next day, November 21, 2014. (Exhibit A: “Pending Depositions” email discussion between Plaintiff Pro Se Denise McVea and Counsel for City of San Antonio Michael Siemer, November 20, 2014.) 9. Plaintiff pro se request the Court compel the depositions of Freeman and Phelan on December 3-4, 2014, and December 9-10 2104, respectively pursuant to federal law. Sgt. Scott's Call Log 10. Plaintiff has timely requested discovery and disclosure of relevant information regarding her charges that SAPD officers violated her constitutional right to be free from false arrest, illegal search and seizure and malicious prosecution. Il. Defendant Scott's call log on the day or days surrounding Plaintiff's arrest is relevant to this cause of action. Defendants’ efforts to withhold that information is counter to the Supreme Court's rulings in this regard. 12. Defendants have failed to produce documents responsive to Plaintiff's Plaintiff Response to Defendants’ Motions to Quash Deposition/Freeman/Phelan/ SA-14-CA-073-DAE 3timely filed production, deposition, interrogatories and deposition requests. 13. The United States Supreme Court has recognized that the discovery rules "are to be accorded a broad and liberal treatment.” Hickman v. Taylor, 329 US. 498, 507 (1947). The party resisting discovery must show specifically how each request is not relevant or otherwise objectionable. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). “It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery provisions are to be applied as broadly and liberally as possible, the privilege limitation must be restricted to its narrowest bounds.” Hickman, 329 U.S. 495, 507-508 (1947) 14. Defendants have failed to seek a protective order from the Court. Therefore, the discovery sought by plaintiff should be provided according to federal rules of court. 15. "[A] party seeking a protective order to prevent or postpone a deposition must show good cause and the specific need for protection." Williams ex rel Williams v. Greenlee, 210 F.R.D. 577, 579 (N.D. Tex. 2002) (Kaplan, J.) (citing Landry o. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir. 1990); Bucher v. Richardson Hosp. Auth., 160 F.R.D. 88, 92 (N.D. Tex. 1994) (Kaplan, J.)). "Rule 26(c)'s requirement of a showing of good cause to support the issuance of a protective order indicates that the burden is upon the movant to show the necessity of its issuance[.]" In re Terra Int'l, Inc, 134 F.3d 302, 306 (Sth Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n3 (Sth Cir. 1978), Federal Practice and Procedure § 2035, at 483-86 (2d ed. 1994)). "Good Plaintit’s Response to Defendants’ Motions to Quash Deposition/Freeman/Phelan/ SA-14-CA-0073-DAE 4cause! exists when justice requires the protection of ‘a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc, 218 F.R.D. 125, 133 (E.D. Tex. 2003) (quoting Landry, 901 F.2d at 435). The City of San Antonio's “they-don’t-know- anything-and-even-if-they-did-it’s-not-relevant” argument simply is not enough to establish entitlement to a quashing of Freeman's and Phelan’s subpoenas deuces tecum. The City’s attempt to quash the detectives’ depositions appears to be nothing more than another effort to keep relevant and compelling evidence off the record so that the fictions created to cover up criminal activity and police misconduct may continue, The Supreme Court has consistently evinced its displeasure for those tactics, Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action." Fed. R. Evid. 401. 16. Plaintiff asserts that Defendant City of San Antonio is in violation of Rule 26.(a)(B), which calls for a copy or description of those documents in the possession, custody, or control of the party “and that the disclosing party may use to support its claim or defenses, unless solely for impeachment. 17. Plaintiff asserts that Defendants are in violation of federal discovery rules, which asserts that a Court order should not be ignored. 18. As a propia persona, Plaintiff objects to Defendant City of San Antonio's efforts to withhold the depositions of Detective Phelan and Detective Freeman. 19. As propia persona, Plaintiff objects to Defendant City of San Antonio's effort Phin’ Response to Defendants’ Motions to Quash Depositon/Frecman/Phelan/ SA-14-CA-O073-DAE 5to withhold discovery regarding the call log of SAPD Sgt Scott. 20. As propia persona, Plaintiff objects to Defendant City of San Antonio's effort to withhold discovery regarding the deposition of Detective Phelan. 21. As propia persona, Plaintiff objects to Defendant City of San Antonio's effort to withhold discovery regarding Det. Freeman. 22, Defendants have failed to petition the court for permission to ignore Plaintif’s timely filed requests for discovery. 23, Finally, Federal Rule of Civil Procedure 26(b) allows a party to obtain discovery "regarding any non-privileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). Plaintiff has a right to inquire into any SAPD actions on the property where she was arrested because those actions speak directly to Plaintiff's charges and complaints against the SAPD and the defendant SAPD officers. Plaintiff emphasizes that the deposition-discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts “and to compel their disclosure wherever they may be found”. Hickman v. Taylor, 329 US. 495, 507-508 (1947). DATED: November 24, 2014 Respectfully submitted: /S/ Denise McVea ‘lainsif’s Response to Defendants’ Motions to Quash Depesition/Freeman/ Phelan SA-14-CA-0073-DAE. 6X/s/. Denise McVea, Pro Se 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 dmevea@aurisproject.org Plaintiff's Response to Defendants’ Motions to Quash Deposition/Freeman/Phelan/ SA-14-CA-0073-DAE,EXHIBIT GIN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS ‘SAN ANTONIO DIVISION DENISE MCVEA, § Plaintiff). § § v. § SA-14-CV-00073-DAE § OFFICER T. SWAN; OFFICER SCOTT; § OFFICER BERNAL; UNKNOWN § OFFICER #1; AND SAN ANTONIO § POLICE DEPARTMENT, § Defendant(s) 5 DEFENDANT CITY OF SAN ANTONIO’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL TO THE HONORABLE DAVID A. EZRA, UNITED STATES DISTRICT JUDGE: NOW COMES, Defendant, City of San Antonio and the San Antonio Police Department! (hereinafter referred to as “Defendant”), and files this Response to Plaintiff's Motion to Compel, and in support thereof would show the Court as follows: 1 ‘This lawsuit arises from an incident on January 21, 2013 during which Plaintiff, Denise McVea (“Plaintiff*) was charged with a violation of a municipal ordinance for failing to obtain a permit to hold a garage or yard sale. When Plaintiff refused to sign the citation she was taken into custody. Plaintiff is alleging a violation of her Federal Constitutional Rights actionable under 42 USC §1983 and also brings a claim pursuant to 42 USC §1985. "The “San Antonio Police Department” is not a legal entity capable of being sued. See Darby v Pasatlena Police Dep't, 939 F-2d 311, 313 (Sth Cit.1991); see also Martin v. City of San Antonio, 2006 WL 2062283 (W.D. Tex. 2006). Plaintiff's pro se claims against the “San Antonio Police Department” will be construed as a lawsuit against the City of San Antonio for purposes of this Motion. WeVea— COSA's Response to P's Motion to Compel Page | of 7The Depositions of Detectives Freeman and Phelan 2, PlaintifFhas filed what is best characterized as a “preemptory” Motion to Compel seeking to compet the depositions of Detectives Freeman and Phelan. Plaintiff has not actually issued any deposition notices since the originally scheduled deposition dates, but seeks, nevertheless, 0 compel the depositions of Detectives Freeman and Phelan, After the City received notice that the Court had denied its motion to quash the depositions of Detectives Freeman and Phelan, the City attempted to schedule the depositions before the Scheduling Order Discovery Deadline of November 24, 2014, (See Exhibit “C”; see also Scheduling Order ~ Document 25). Ms. MeVea 1¢ in the Court’s Scheduling refused to conduct the depositions on or before the discovery dea Onder. (See id.) In recognition of the fact that Ms. MeVea is pro se, the City again attempted to resolve the issue by offering to extend the discovery deadline only for the limited purpose of scheduling Det. Freeman’s deposition on December 9, 2014 at 10:00 AM and Det. Phelan’s deposition on December 10, 2014 at 10:00 AM. However, the City informed Ms. MeVea that it would not agree to any further delay or extension of the discovery deadline and that the agreement to extend the discovery deadline would be expressly conditioned upon Plainifh's compliance with FED. R. Civ. P. 30 (6) (1) (limiting the duration of a deposition to “I day of 7 hours"), Ms. McVea never accepted the offer (she never even responded), which has necessitated the filing of this response to Plaintiff's preemptive motion. 3, The Discovery deadline in the Court’s Scheduling Order (November 24, 2014) has now passed, The Scheduling Order Provided that “[Jounsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post- deadline discovery.” There has been no agreement to extend the discovery deadline and Plaintiff WeVea— COSA's Response to P's Mation to Compel Page 2of7has shown no “extraordinary circumstances” or even good cause to extend the discovery deadline in her motion to compel. Plaintiff has completely failed to explain why she waited until the last minute to begin scheduling depositions. She failed to explain why she could not have taken the depositions of Detectives Freeman and Phelan in the four months after the Court centered the Scheduling Order on July 25, 2014. She has shown no reason why she could not take iff should have the depositions on November 21 and 24, 2014 as proposed by the City. Plait ‘been prepared to move forward with the depositions of Detectives Freeman and Phelan on November 18 and 19 as originally scheduled, and has offered no reason why she was not ready to take the depositions two days later on November 21 and 24. On the other hand, Plaintiff has shown a strong desire to stall and delay this case as much as possible. (See e.g. Document 31 — Plaintiff's Motion for Continuance; Document 32 ~ Motion For Abatement). 4, Although Defendant is not required by the Scheduling Order to show prejudice, Defendant will, nevertheless, be prejudiced by an extension of the Discovery Deadline because the deadline for dispositive motions is approximately three weeks away on December 24, 2014. Ms. McVea is recording the depositions and attempting to transcribe them herself. The depositions that Ms. McVea has recorded have been beset by technical problems with her recording devices and, to date, Defendants have not received copies of the recorded testimony or transcripts of the depositions that Plaintiff has taken in this case. It is unlikely that Plaintiff will have the depositions she has already taken, plus the two additional depositions, transcribed in time for the Dispositive Motions Deadline, 5. Finally, Plaintiff is asking the Court to order that the depositions of Detectives Freeman and Phelan cach span two days. FED. R. Civ. P. 30 (d) (1) limits the duration of a deposition to MeVea~ COSA’s Response to P's Motion to Compel Page 3 of 7“I day of 7 hours”. Ms. MeVea has shown no reason why she needs two days with each of these iuals who know nothing about any real issue in this case.” in Sgt. Seott’s “Call Log’ 6. Plaintiff makes the vague allegation in het Motion to Compel that she “timely requested discovery and disclosure of relevant information regarding her charges that SAPD officers violated her constitutional right to be free from false arrest, illegal search and seizure and malicious prosecution” and that “Defendants have failed to produce documents responsive to Plaintiff's timely filed production, deposition, interrogatories’ and deposition requests.” It is noteworthy that Plaintiff does not allege that she actually requested production of any “call log” of any SAPD officer, including Sgt. Scott. Plaintiff only states that “Sgt. Scott’s call log...is relevant to this cause of action.” This is because Plaintiff never requested production of any ‘As previously noted in Defendant's Motion to Quash (Document 44) Detective Freeman was assigned to investigate a burglary on November 19, 2010 (over two years before the incident made the basis of this lawsuit) committed by a “heroin addict and habitual offender” at 1614 Martin Luther King (the location of the yard sale at issue in this lawsuit). Although Plaintiff docs not mention Officer Phelan in her Amended Complaint, apparently he had the misfortune to respond to a burglary report made by Plaintiff at 1614 Martin Luther King on September 7, 2013, (almost nine months after the incident made the basis of this lawsuit) that Ms. McVea alleges involved “conspirators implicated in title fraud”. Plaintiff's allegation concerning the “conspiracy to commit title fraud” was the subject of an action to quict title to 1614 Martin Luther King in State District Court styled James Kissler v. Denise MeVea, in the 45" District Court of Bexar County, Texas; Cause No. 2013-CI-14927 which was resolved in favor of Mr. Kissler, and Ms. McVea was sanctioned by the Court for filing frivolous claims regarding her ‘ownership” of the property (she was, in fact, a “squatter”). Ms. McVea does not, and never did, own the property at 1614 Martin Luther King. Plaintiff's real purpose in seeking to depose Detective Freeman and Officer Phelan is to re-litigate issues that have already been resolved in James Kissler v. Denise McVea. Ms. McVea also sought the depositions of Donna Kay McKinney (the Bexar County District Clerk) and Ofelia Lisa Hernandez (the notary who notarized a deed or other document at issue in the James Kissler v. Denise MeVea dispute) but never had either served with subpoenas. Ms. McVea is simply trying to resurrect her dispute ‘over the title to 1614 Martin Luther King under the guise of an ill-defined “conspiracy”. > Plaintiff did not propound any Interrogatories to Defendant. “ [tis not clear what Plaintiff is referring to as a “call log”. COSA's Response to P's Mation to Compel Page 4 of 7 ever“call log” 7. Instead, Plaintiff relies upon “Rule 26 (a) (B)"* which she points out “calls for a copy or description of those documents in the possession, custody, or control of the party and that the disclosing party may use to support its claim or defenses, unless solely for impeachment.” However, Plaintiff is seeking to apply Rule 26 more broadly than it is written. See Meltzer/Austin Restaurant Corp. v. Benihana National Corp., 2013 WL 75762 (W.D. Tex. 2013). Rule 26(a)(1) requires parties to make initial disclosures regarding individuals and documents that “the disclosing party may use to support its claims or defenses ” See id.; See also, eg., Fed. R. Cv. P. 26(a)(1)(A)(; FED. R. Civ. P. 26(a)(1)(A)(Gi) (emphasis added). The plain, unambiguous language of the rule makes it clear that such disclosures are based on what the disclosing party believes it will use to support its claims or defenses at trial, not what the opposing party believes to be relevant. See Melizer/Austin Restaurant Corp. v. Benihana National Corp., 2013 WL 75762 (W.D. Tex. 2013). Moreover, FED. R. Civ. P. 26(a)(1)(A)(i) requires only that the documents be described by category and location. There is no requirement that such documents actually be produced. See Sizemore v. Wal-Mart Stores, Inc., 2006 WL 1698291, at *3 (S.D. Tex. June 16, 2006). 8 Furthermore, under Feb. R. Civ. P. Rule 37, a party seeking discovery may move for an order compelling the production or inspection of documents if “a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” See Texas Democratic Party v. Dallas County, Texas, 2010 WL 5141352 (N.D. Tex. 2010) citing Fep. R. Civ. P, 37(a)(3X{iv). It is axiomatic that a court may not compel the production of “A”), and Supplemental * Attached hereto are Plaintiff's Request for Production (Ex! Request for Production (Exhibit “B”). ° Plaintiff probably means to rely on FeD. R. Cv. P. 26 (a)(1)(A)(i) ‘MeVea~ COSAs Response to P's Motion to Compel Page 5 of 7documents under Rule 37 unless the party seeking such an order has served a proper discovery request on the opposing party. See id., citing Ledbetter v. United States, 1996 WL 739036 at "2 (N.D. Tex. Dec.18, 1996) (“[A] motion to compel pursuant to the enforcement provisions of [ ] Rule 37 clearly contemplates that the parties have relied on the formal discovery rules.”). Plaintiffs did not comply with the requirements of Rule 34, because she never requested “Set. Scott’s call log”. Under Rule 34, a proper request for production must, inter alia, “describe with reasonable particularity each item or category of items to be inspected.” FED. R. Clv. P. 34 (by(1)(A) & (B). Neither Plaintiff's Request for Production (Exhibit “A"), nor Supplemental Request for Production (Exhibit “B”) describes “with reasonable particularity” the “call log” for which she now seeks an order compelling production. Plaintiff completely ignores these that the “call log” is relevant and Defendant's requirements, focusing instead only on her b failure to seek a protective order. Whether the “call log” is relevant to the determination of plaintiffs’ claims (which it is not) is of no significance absent a proper request for production. See Ghavami v. Alanis, 2006 WL 1821700 at *1 (W.D. Tex. Jun. 29, 2006) (court may not compel production of documents, even if relevant, without a formal discovery request). Likewise, Defendant could not possibly seek a protective order as to a request that was never made. WHEREFORE, PREMISES CONSIDERED, Defendant CITY OF SAN ANTONIO prays that the Court deny Plaintiff's Motion to Compel, and that the Court grant such further relief as may be just. Me Vea — COSA’s Response t0 P's Motion to Compl Page 6 of 7Respectfully Submitted, CITY OF SAN ANTONIO Robert F. Greenblum, City Attorney SBN: 08390430 Office of the City Attorney Litigation Division 111 Soledad St., 10" Floor San Antonio, TX 78203 Michael D. Siemer Assistant City Attorney Bar No: 18343670 (210) 207-8784/ (210) 207-4357 Fax ‘Michael Siemer@sanantonio.gov ATTORNEY FOR DEFENDANT, CITY OF SAN ANTONIO CERTIFICATE OF SERVICE Thereby certify that I electronically filed the foregoing with the Clerk of Court using the CM/ECF system that will send notification of such filing to the following on December 1, 2014. Mark Kosanovich Fitzpatrick & Kosanovich P.O. Box 831121 San Antonio, Texas 78283-1121 AND 1 also certify that on the 1* day of December, 2014, the foregoing has been served to the following interested person by: Denise Mevea & cere 1006 Wyoming St. San Antonio, Texas 78203 Wilewi— MICHAEL D. SIEMER MeVea—COSA's Response to P's Motion to Compal Page 7 of7EXHIBIT HCase §:14-cv-00073 Document 53 Filed 12/05/2014(Page 1 of 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DENISE MCVEA, Plaintiffs, Cv. No. SA:14-CV-73-DAE. v. OFFICER T. SWAN; OFFICER SCOTT; OFFICER BERNAL; UNKNOWN OFFICER #1; AND CITY OF SAN ANTONIO. (02 W02 eon con tan con tan tan Won eon eon tan Defendants. ORDER DENYING MOTION TO COMPEL DISCOVERY RESPONSE Before the Court is a Motion to Compel Discovery Response filed by Plaintiff Denise McVea (“Plaintiff”), (Dkt. #47.) Defendant City of San Antonio (“Defendant”) filed a Response to the Motion. (Dkt. # 50.) Pursuant to Local Rule CV-7(h), the Court finds the Motion amenable for disposition without a hearing, For the reasons that follow, the Court DENIES Plaintiff's motion. BACKGROUND On February 11, 2014, Plaintiff filed a Complaint against officers in the San Antonio Police Department and the City of San Antonio claiming a violation of her civil rights. (Dkt. # 5.) The Court issued a Scheduling Order on July 25, 2014 setting November 24, 2014 as the deadline for discovery. (Dkt.Case §:14-cv-00073 Document 53 Filed 12/05/20140Page 2 of 4 #25.) The Scheduling Order provided that counsel “may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances.” (Id. $6.) On November 4, 2014, Defendant filed a Motion to Quash the Depositions of Officers Phelan and Freeman, police officers in the San Antonio Police Department. (Dkt. # 44.) The Court denied the motion to quash on November 18, On November 20, Defendant contacted Plaintiff offering to schedule the two depositions for Friday, November 21, and Monday, November 24, respectively, in order to complete the depositions before the discovery deadline set by the Court’s Scheduling Order. (“Resp.,” Dkt. #50, Ex. C.) After Plaintiff refused, Defendant offered to agree to extend the discovery deadline for the limited purpose of taking the depositions in question. (Id, at 2.) Plaintiff did not respond, and instead filed the instant Motion to Compel Discovery Response on November 24,2014, (Id,; Dkt. # 47.) Plaintiff's Motion requests that the Court compel the depositions of Officers Phelan and Freeman, and also seeks to compel the production of “Sgt. Scott’s Call Log.” (Dkt. # 47 at 3.) ANALYSIS “On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to conferCase 5:14-cv-00073 Document 53 Filed 12/05/2014CPage 3 of 4 with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. Pro. 37(a)(1). Plaintiff's Motion does not contain the certification required under Rule 37, and was filed in spite of Defendant's attempts to schedule the requested depositions without court action. Plaintiffs Motion fails on this basis alone, and the Court advises Plaintiff to refrain from unnecessarily engaging the Court in discovery issues that would be easily resolved by conferring with the opposing party. The Court would further deny Plaintiff's motion to request production of “Sgt. Scott’s Call Log” on the merits, A party seeking discovery of documents or tangible items must serve a request for production on the party believed to be in the possession, custody, or control of the documents or other evidence. Fed. R. Civ. P. 34(a). A party may not move to compel production of a document it did not properly request under Rule 34. Neither Plaintiff's Request for Production nor her First Supplemental Request for Production included the call log referred to in instant motion. Plaintiff's reliance on Rule 26(a)(1) relating to initial disclosures is misplaced, as that provision requires only that a party disclose individuals and documents that the disclosing party may use to support its claims or defenses. Fed. R. Civ. Pro. 26(a)(1)(A). There is no indication here that Defendant intends to use the requested document. Finally, there are no “extraordinary circumstances” justifying intervention by the Court.ATTACHMENT IiCloud Mail - Inbox (279 messages) 20f2 From: "émevea@ aurisproject.org" Subject: Notice of Unavailability Date: October 1, 2014 11:01:54 AM COT. To: Mark Kosanovich Mark Kosanovich: | plan to be out ofthe country during the coming months, Please see the notice of availabilty below, Denise McVea FromTo=From: 10/1/2014 To: 1/21/2015 AttyName=Denise McVea TxBarNo=pro se FirmName=Pro Se FirmAddress=1006 Wyoming Street Suite 1 San Antonio, Texas 78203-1318 FirmPhone=210-316-3638, FirmFax= ‘Alternate Counsel=Causes: 20110104116 - MeVea v, Allstate 2019C103010 - McVea v. Greyhound 2018CI14927 -Kisslerv. MeVea '2013TA104989- Bexar County v, MeVea 1443420 - State of Texas v. MeVea ‘hups:fwww.icloud.com/ | cetity that this notice of unavailability has been served on all counsel inthe above styled and numbered causes. Denise McVea FormHandlera=Submit 00°N01 12/11/14 1:22 PM.From: "dmevea@aurisproject.org' ‘Subject: Depositions Date: October 17, 2014 12:41:34 PM CDT ‘To: Mark Kosanovich Ce: michael siemer@sanantonio.gov 8 Attachments, 313 KB. Mr, Kosanovich: co am, xz A Xx Pease so te atached (ONME GLa aiKUOSKD CMake of GOU/IOSKD ONatc AN LOIKD Noses of Dopston or the Detendant ofers in SA-14-CA-0078-DAE, hard copies of which | willbe mang to you today via USPS Prin sic ‘Thank you for your attention to this matter. Denise McVea 000002From: "dmevea@aursproject org" Ce: michael siemer@sanantonio.gov 8 Attachments, 448 KB Mr. Kosanovich: Please soe the attached INTERROGATORIES forthe defendant officers in SA-14-CA-0073-DAE, a hard copy of which | willbe mailing to you via USPS mal today, ‘Thank you for your attention to this matter. Be Denise MeVea Interrogator jas (LS2KB) Interrogator TT53KB) Interrooator AN (144 KB) 000003iCloud Mail - Inbox (279 messages) bhups:/www.icloud.com/ From: dmevea@aurisproject.ora? Subject: 1St Supplemental Request for Production of Documents Date: October 25, 2014 2:13:57 PM COT To: michael siemer@sanantonio.gov Ge: Mark Kosanovich 1 Attachment. 115 KB Mr, Siemer: ‘Attached you wil ind Piintit's frst Supplemental Request for Document Production, which | will mal to you today via USPS mail on a (Ost surnf00 (115K) thank you for your attention to this matter. Denise McVea NIN NOg 2o0f2 12/11/14 1:21 PM.From: Denise MeVea @? ‘Subject: Fwd: supplement ‘October 17, 2014 1:46:40 PM COT ‘michael siemer@sanantonio.gov" ‘Sent from my iPhone Begin forwarded message: From: Denise McVea 1 Atachmar, 115 KB Me. Siemer: ‘tached you wil find Paints rst Supplemental Request for Document Production, which | wil mall to you today via USPS ma a. Zs ‘(Ellst Sune ROD (115.58) Thank you for your attention to this mater. Denise McVea "97006From: “Michael Siemer (City Attomey)* Subject: RE: Anthony Barasa Date: October 28, 2014 7:05:54 PM CDT To: ‘Denise McVea' Co: *Mark Kosanovich (SAPD)* Dear Ms. McVea: ‘Anthony Barasa is nota party to this lawsuit, has not been served with @ summons, and has not been served with @ subpoena. I dont ‘know which request for production you contend would elicit documents conceming Officer Barasa’s death, but responses to your requests for production are not yet due. In any event, | would refer you to this memorial website site apparently set up by the funeral home that handled his funeral hitpvvww porterioring.comimemsol.cgi?user_id=1212986 | hope that will serve as sufficient substantiation that he has passed away. Michael D, Siemer Assistant City Attorney Litigation Division P.O. Box 839968 San Antonio, Texas 78283 Direct (210) 207-8784 J Fax (210) 207-4967 ‘The information contained in this emails confidential, intended forthe use ofthe individual or entity named above. you are not the intended recipient, or the representative or agent responsible for dalivery ofthis emai, you are hereby notified hat any dissemination, distribution or copying ofthis communication is strictly prohibited. If you received tis in error, please reply and natily the sender (only) and delete the message. Thank you. Original Message From: Denise McVea [maitomcvead@icloud com} ‘Sent; Wednesday, October 29, 2014 3:20 PM To: Mark Kosanovich Co: Michae! Siemer (City Attorney) ‘Subject: Anthony Barasa Dear Mr. Kosanovih; {am in receipt of your October 27, 2014 letter in which you relay that Anthony Barasa is deceased. Your statement that we had Subject: Re: Denise McVea v. Oficer Swan, et.al Date: October 30, 2014 1:33:51 PM CDT ‘To: Mark Kosanovich Ce: michael.siemer@sanantonio.gov Dear Mr. Kosanovich: Please see attached, ‘On Oct 28, 2014, at 03:08 PM, Mark Kosanovich wrote: Please see the attached. Sincerely, Mark Kosanovich Fitzpatrick & Kosanovich, P.C. October 29, 2014 Denise MeVea VIAEMAIL 1006 Wyoming Steet ‘San Antonio, Texas 78203 RE: Denise MeVea v. Offer T. Swat, et a, Civil Action No.: SA-Id-CA.0073-DAE Dear Ms, MeVea: 1am in receipt of your e-mail dated today. First, clearly informed you that Officer ‘Barasa was deceased winen you called a couple of weeks ago inquiring about deposition dates for the officers. The statements in my letter are not false. Second, 1 do not represent Officer Barasa since he is not a defendant in this ease. T do not have the prof of his death that you aze requesting. Third, I have already oticed your deposition for November the 14%. Your statements that you are not going to “hand aver” your depesition date because of your perception that there are iregular and conspiratorial proceedings occuring is ota valid reason Wo not agree to appear fora deposition. As such Twill be proceeding with your deposition on November the 14% as thas been noticed. Adkitionally, I have not received any documeataton fom you about switching Mr. Barasa's deposition for othe depositions as you stated in your e-mail. Tn any vent I do not agree to the seheduling of those depositions on November the 14* because Ihave slready noticed your deposition for tht day Also, please be advised that 1 will be on vacation from November 21, 2014 through November 30,2014. Thank you for your attention to thie matter Sincerely, -KOSANOVICH 2 Atachments, 65 KB 100008Denise McVea Ocobee 80,2015 Mark Kozani Arey fr Set, Sean PO Hor s31131 Sun Antonio, Texas 782831121 2i0j07.7359 (210)2078007 FAX. exe Mr Rosnovichs 1 a in receipt of your email dated Ocober 29, 2014, whereby you alee at you informed me of Ofer Bar's tine erie: 1 we abst no rcllertion of any such dacson ‘Ac Lid before, ha you infrmed me of his death T would not have nosed hm for deposition. Second itis compelling na you ar ining Ut we spoke ois death over the phone on some radon unienthed data tac acknowledge that on did nec adc rin wating Decause of the amount of coupon and criminality I have documented among Use Berar Couy dar, police dynes and el eon, andthe asount of docamen barsaen aad sb Ulve winesed nd sled, 1 fave covtinsed to int that all comronniaion be in wring. You were aware ofthat preference sacs the Grey ince in whieh you represented SAPD officers in colaboraion vith Grephound in Caine No. 201CHM010 in Betar Cony Distt Court A tis pont, yo must erty be aware of the sve ssc wih tacts ato, inching an improper ignored mtn for reewal of Jrge Micoel May ad Judge Mens refit se ng of ac ad Cousins of Law to support is highly improper paning ol Creston’ Motion fr Sumy Jaipne a You appear to be using the same tics here that have been perteced by other Bexar County atornes to gin unfair sanantage ovr pro segs. Tait 39, you ad your eallortors willl ormaton hat the pro se person's ‘ig by ein an acm to burden aa ovrhel him athe ate place Fe norton nt eon at exery ‘opportunity. Is iar to note ako dat oui has provided your email adress in oer cases ofan, at tha iformaion wat cron beet ling in thi case Ly find i sgesie tat your se ison one hand making eat hay about your sity to whol disney area ule 34 FRCP OIA) bt on the ote hand llega you ae freely sharing information wid me oer the phone simply no cele. Having ial that, am ageing wo allow wy deporidon on November M, 2014 puri fo your nice, a ong a here se no shenanigans repding ny notes of deposi. Ifyou have ay usin lene lt me kr, Denise MeVen 000009From: Denise McVea Subject: McKinney Subpoena Date: November 5, 2014 7:47:11 PM CST ‘To: Mark Kosanovich Ce: michael siemer@sanantonio.gov For your information, | have decided nat to serve the subpoena deuces tecum on Donna Kay MeKinney. Denise McVea 000010From: Denise McVea Subject: Fwd: Notice of Deposition Date: November 7, 2014 7:47:39 AM CST To: dmevea@tarola.us Sent from my iPhone Begin forwarded message: From: Denise McVea Date: Neverber6, 2014 at 459-17 PM CST To: "Michael Siomer (Cay Atorney) «Michael Siemar@ sanantonio aow> Ce; "Mark Kosanowch (SAPD) «Mask Kosanavicn @sanantono aov> Subject: Re: Notice of Depostion To be clear: the deponent should be knowledgeable about procedures and taining for officers, Ho or she should be able to discuss with oonfidence the daily procedures for officers, espocially as they relate to due process, probable cause, report takin, investigations, and required procadures in answering, investigating, and documenting incident and crime reperts. This deponent should have a functional knowledge of police officer standards and the responsibilities of SAPD supervisors and methods ullized in making sure that patrol officers and detectives moot those standards, Any officer having achieved the rank of leutenant should be able to speak to these ssuos with ease, The person should also be able to understand and discuss the police officer association contract and how the. collecive bargaining agreement impacts the daly operations of the department Sent from my iPhone (On Nov 6, 2014, at 12:28 PM, “Michael Siomer (City Atlomey)" wiote: Dear Ms. MeVea: Just to confirm: ‘The areas of examination will be limited to that set forth by the subpoena duces tecum? (i.e. 1. SAPD procedure manual; 2. Documents concerning how to write reports; and 3. SAPD documents regarding you) Your reply to my e-mail seemed a bit evasive (“area of examination does indeed involve aspects of the documents requested”). ‘The purpose of Rule 30 (b) (6) is to ensure that the representative who testifies is knowledgeable about the subject matter upon which he or she will be examined. Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 formation contained inthis email is confidential, intended forthe use ofthe individual or entity named above. Ifyou are not the jesna aioe representative or agent responsible for delivery ofthis email, you are hereby notified that any dissemination, distribution or copying ofthis communication is stetly prohibited. Ifyou reccived ths in ero, please reply and notify the sender (only) and delete the message. Thank you From: Denise McVea Sent: Thursday, November 06, 2014 11:50 AM To; Michael Siemer (City Attorney) Subject: Re: Notice of Deposition Mr. Siemer, ‘The area of examination does indeed involve aspects of the documents requested. I'you have any other 000011questions, please do not hesitate to contact me. Denise MeVea Sent from my iPhone On Nov 6, 2014, at 11:30 AM, "Michael Siemer (City Attorney)” wrote: Dear Ms, McVea, You recently sent me a deposition notice you concerning the deposition of an SAPD representative, Rule 30 FRCP specifies the procedure for deposing a representative of an organization such as 2 governmental entity and requires that the deposition notice must describe, with reasonable particularity, the matters for examination. While you included a subpoena duces tecum for documents (1, SAPD procedure manual; 2. Documents concerning how to write reports; and 3. SAPD. documents regarding you) you made no mention of the areas of examination for the witness or witnesses. Did you intend that the subpoena duces tecum was also the list of matters for examination of the witness or witnesses? Please either confirm that the subpoena duces tecum is actually the description of the matters for examination or send a new deposition notice that complies with Rule 30 FRCP as it pertains to depositions of representatives of an organization or entity by 5:00 pm tomorrow. If you fail to do so will be forced to file another motion to quash. Please consider this e-mail as an attempt to confer regarding this matter. Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 ‘The information contained inthis email is confidential, intended forthe use of the individual or entity named above. If {you are not the intended recipient, or the representative or agent responsible for delivery of this email, you are hereby ‘notified that any dissemination, distribution or copying ofthis communication is strictly prohibited. L'you received this in ero, please reply and notify the sender (only) and delete the message. Thank you. From: Denise McVea {mal Sent: Thursday, October 30, 2014 11:57 AM Tot Michael Siemer (City Attorney) Ce: Mark Kosanovich (SAPD) Subject: Notice of Deposition Dear Mr. Attached you will find the Notice of Deposition for the SAPD. Please advise me of the identity of the designated SAPD official who will be participating in the deposition, including full name and title. I will also fax you a copy of the notice. If you have any questions, please let me know. Denise MeVea 900012From: Subject Date: To: Ceo: Bee: Denise McVea Response to Motion to Quash November 9, 2014 9:48:26 AM CST Mark Kosanovich ‘michael siemer@sanantonio.gov ‘books _5028@kindle.com Pease 90 tothe following link to see my Response to your Mation to Quash, led Friday afternoon, httpsiivww scribd. comidoc!24595605 1/F-ResPQUASH pdf Denise MeVea 000013From: Denise MeVea d Subject: Plaintiffs Initial Disclosures Date: November 11, 2014 1:22:36 PM CST ‘To: "Michael Siemer (Cty Attorey)" Ce: Mark Kosanovich Please see attached, BS (planus Apa 4 ka) 4 Altachmont 86 KB 000014From: Denise McVea Subject: Re: Conference Rooms Date: November 14, 2014 4:38:00 PM CST To: ‘Michael Siemer (City Attorney)" Thank you. Sent rom my iPhone (On Nov 14, 2014, at 3:21 PM, "Michael Siomer (City Attomey)' wrote "have sent the City’s responses to your request for production by CMRAR today. Please be on the lookout frit. Ifyou do net receive it within a few days please let me know. | intend to track down the previous CMARR item and datermine why you did not gett Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 830968 ‘San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 The information contained in this email is confidential, intended for tho use ofthe individual or entity named above. Ifyou are not the intended recipient, or the representative or agent responsible for delivery ofthis email, you are hereby notified that any dissemination, ‘stration of copying of tis communication is strictly prohibited, Ifyou received this in ero, please reply and notiy the sender (ony) ‘and delete the message. Thank you. Original Message From: Denise McVea [maitomcvead@cloud.com} ‘Sent: Friday, November 14, 2014 3:19 PM To: Michaol Siomer (City Attorney) ‘Subject: Re: Conference Rooms ust ortho record, the tem waiting forme was trom Andrew Warthen trom the District Atorney's Otfce. Sent rom my iPhone On Nov 13, 2014, at 9:17 AM, "Michael Siemer (City Attomey)" wrote: Dear Ms, MeVea: | oid you that a CD-ROM containing the General Manual of the SAPD had been sent to you. it was atlached tothe Citys intial disclosures. It was sent by CMARR item numer 70032260000407742487. You admitted yesterday that you were aware ofa parcel that needed to be “signed for and that you have nat yet picked it up from the post ofice. According to USPS.com, the item was dalivered to the USPS facility on 1031/2014 and delivery was attempted on 11/1/2014. I might stil be waiting for you atthe your local post office. Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839968 ‘San Antonio, Texas 78263 Direct (210) 207-8784 / Fax (210) 207-4957 The information contained inthis email is confidential, intended for the use ofthe individual or entity named above. It you are net the intended recipient, or the ‘representative or agent responsible for delivery of this email, you are hereby notified that any dissemination, dstnbution or copying of this communication is strictly prohibited I you received this in error, please reply and notity the sender (only) and delete the message. Thank you. Original Message From: Denise McVea {maitomcvead@icloud.com] Sent: Wednesday, November 12, 2014 6:08 PM. To: Michael Siomer (Cty Attorney) 000015Co: Mark Kosanovich (SAPD); Barbara Wagner (City Attorney) ‘Subject: Re: Conference Fooms Mr. Siemer: Today at Joseph Swan's deposition, you claimed that you sent me a disk with documents responsive to my discovery requests. | hhave not received them. When did you send them and by wnat method? | appreciate your prompt attention to this matter. Officer Swan referenced quite a few documents in his deposition Denise McVea Sent rom my iPhone (On Nov 10, 2014, at 1:25 PM, "Miche! Siomer (City Attorney)" wrote: Ihave reserved the conference room. The Address is 111 Soledad, 10th Floor. Just take the elevator tothe 10th Floor and tell the ‘receptionist that you are here to see me. Michael D. Siemer Assistant Ciy Attorney LLtigation Division P.O. Box 839968 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4957 The information contained in this email is confidential, intended forthe use ofthe individual or entity named above. If you are not the intended recipient, ofthe representative or agent responsible for delivery ofthis email, you are hereby notified that any dissemination, distibution or copying ‘ofthis communication is strictly prohibited. I you received this in errr, please reply and not the sender (only) and dalate the ‘message. Thank you. ~—-Original Message- From: Denise McVea [mailto:mcvead@icloud com) ‘Sent: Monday, November 10, 2014 1:24 PM To; Michael Siemer (City Attorney) Subject: Re: Conference Rooms Mr. Siemer, ‘Justa quick note to confizm that we will be using the ct attomey's conference room for Swan's and Scot's depositions Wednesday and Thursday, respectively. Both depositions begin at 10 am and are expected to run for §-6 hours. Can you confirm the address and room number where I need to check in? Thank you, Denise McVea ‘On Oct 29, 2014, at 6:42 PM, Michael Siemer (Cty Attorney) wrote Dear Me. McVea: | willbe happy to offer the use of one of cur conference rooms for depositions of Sgt. Soot and OMficer Swan. You may confirm the availabilty of the conference room either through me or through my Legal Assistant, Barbara Wagner (207-6369). However, intend to file @ Motion to Quash the depositions of Detectives Freeman and Phelan on the basis tha the information You are seeking is completely irrelevant to your Gams inthis lawsuit. Rule CV-7 () ofthe Local Fules of the US Dist. Cour for The Wester Dist. Of Texas requires that we confer in an attempt 1o resolve disputes prior toiling a non-cispositve motion. Please consider this e-mail as an attempt to confer regarding the depositions of Detectives Freeman and Phelan. I wil file the ‘mation to compel unless you withdraw the deposition notices for Detectives Freeman and Phelan by 5:00 pm on Friday, October 31,2014, Michaol D. Siomor Assistant Cy attomey Litigation Division P.O. Box 839968 ‘San Antonio, Texas 78283, Direct (210) 207-8784 / Fax (210) 207-4967 The information contained inthis email is confidential, intended for the use ofthe individual or entity named above. If you are nat the intended recipient. or 900016olete the message. Thank you. Original Message- From: Denise McVea [mailto mevead@icloud.com) Sent: Wednesday, October 29, 2014 3:37 PM. To: Mark Kosanovich Ce: Michael Siemer (City Attomey) ‘Subject: Conference Rooms ‘Mark and Michael: {st also your preterence thatthe subpoenaed depostions of Freeman, Hemandez, and Phelan, also be held at the conference room at 111 Soledad? itso, how may | confirm that iis available” Please let me know ASAP so that | may finish making arrangements, the representative or agent responsible for delivery ofthis email, you are hereby noified that any dissemination, distribution or ‘copying ofthis communication is strictly prohibited. If you received this in error, please reply and natty the sender (only) and Denise McVea 900017From: Denise McVea Subject: Re: Deposition of SAPD Representative Date: November 16, 2014 10:38:26 AM CST To: "Michael Siemer (City Attorney)" Co: "Mark Kosanavich (SAPD)" , "Barbara Wagner (City Attorney)" - Mr. Siemer: Nov. 181s fine. Please email me his full name and tile so that I may prepare the necessary documents, Sent from my iPhone (On Nov 14, 2014, at 4:02 PM, "Michael Slemer (City Attorney)" wrote: ear Ms. eve, ‘Tre SAPO Representatives at vate on November 38, 20243 carey seeded, He ehoweve salable on November 39,2038 105m. “ ‘Michael D. Siemer ‘Assistant City Atlorney Litigation Division .0, Box $39966 San Antonio, Texas 78283 Direc (210) 207-8784 / Fax (210) 207-4357 “The information connie in this el scone, ended fr he seo te india oetty are bow. y00 mo ths ned ei, he representative or get sponse or delivery hs ema you are ety mulled ar ary dsranatondseton or eopying of ths conmanton sly ahs gos sorhe hie ‘or ese ep and not he seer (any) an dlc te message. Teak 30 Picture (Device Independent Bitmap) 1. jpg> 00018i: Denise McVea ‘October 30 corespondence November 17, 2014 12:18:20 PM CST Michael Siemer “The post office has found the missing disclosures and designation of expert and I received them today along with your responses to my production request Denise MeVea ‘Sent from my iPhone 000019From: "Michael Siemer (Cty Attorney)" Subject: RE: DVD/CD Rom Date: November 18, 2014 1:17:46 PM CST To: ‘Denise MeVea' , "Mark Kosanovich (SAPD)" only the General Manual is onthe disk, although itis broken up into multiple les. The files are all";pd" files which means that you will need Adobe Acrobat Reader, a program that is available for fee on the internet, Michael D. Siemer Assistant Ciy attorney Litigation Division P.O. Box 839968 ‘San Antonio, Texas 78289, Direct (210) 207-8784 / Fax (210) 207-4857 ‘The information contained in this emails confidential, intended forthe use ofthe individual or entity named above. If you are not the intended recipient, or the representative or agent responsible for delivery ofthis emal, you are hereby notified that any dissemination, distribution or copying ofthis communication Is strictly prohibited. If you received tis in error, please reply and notily tho sender (only) {and delete the message. Thank you. -~-Original Message- From: Denise McVea [maito:mcvead@icloud com) Sent: Monday, November 17, 2014 11:42 AM ‘To: Michael Siemer (Cty Attomey); Mark Kosanovich (SAPD) ‘Subject: DVD/CD Rom Mr, Siemer: {1am having rouble opening the cisk you provided titled "COSA's Initial Disclosures - Exhibit time of incident (bates nos. 0000012)" SAPO General Manual in efect at the Are there any other files onthe disk besides the general manual? Ifso, can you lst them and provide them in hard copy format? Also i the general manual on the disk the same as the one entered info evidence during my deposition? Your prompt reply to this inquity is appreciated. Denise McVea Sent from my iPhone 000020From: Denise McVea Subject: Re: Production Request Date: November 18, 2014 2:12:19 PM CST To: "Michael Siemer (Cty Attorney)" Hltake that as a reusal to comply Sent rom my iPhone On Nov 18,2014, a2:10 PM, "Michal Siomer (City Atlorey)" wrote Dear Ms. MoVea Please stop wasting my time Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 836966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4957 ‘The information contained in this emails confidential, intended forthe use ofthe individual or entty named above. Ifyou are not the intended recipient, or the representative or agent responsible for delivery o his emai, you are hereby notified that any dissemination, distribution or copying ofthis communication is strictly prohibited. Hf you received tis in error, please reply and natty the sender (only) and delete the message. Thank you. =--Original Message-—- From: Denise McVea {maitomevead@icloud.com) Sent: Tuesday, November 18, 2014 1:56 PM To: Michael Siemer (Cty Attomey) ‘Subject: Fe: Production Request sir: You are attempting to withhold evidence that shows your clients! connection to and assistance in the fraudulent quitlaim conspiracy ‘You are also attempting to cover up the fac that Sgt. Scott perjured himself when he tesied in deposition that he spoke to a code enforcement officer (whose name he allages he cannot remember) on a day when code enforcement was closed, Withholding evidence of a conspiracy makes you complicit in the conspiracy. Further, | am not conceding thatthe call og is unresponsive to the subpoena deuoes tecum of Seott. Number one asks for al reports, ‘Acalllog generated isa report Number 2 asks for copies of instructions, The call log is proof that he sought and received instructions incident tothe arrest. Pease let me know if you intend to continue withholding the cal og So that | may take appropriate action Denise McVea Sent rom my iPhone ‘On Nov 18, 2014, at 1:40 PM, "Michael Siemer (ity Attorney)" wrote: Dear Ms. MeVea, Your intial correspondence was as folows: "Please comply with my subpoenas deuces tecum and production requests and provide delendant Sgt. Scot's SAPO call log for January 21-23, 2014. Ths log should include, but isnot limited to, all phones calls, emails, and radio communications made by or to Detendant Scott during the time specified.” 00021From: Denise McVea Subject: Re: Subpoena deuces tecum Date: November 18, 2014 4:34:22 PM CST To: “Michael Siemer (City Attorney)" "have not been able to open the files. My computer is treating your disks as malware for some reason. So at this point, | am unable to ‘ascertain what, besides the call logs forthe date of my arrest, is sil missing. hope to gat my guru on it tomorrow after the dopo, ‘Again: please identity the deponent by name and tle ‘Sent from my iPhone (On Nov 18, 2014, at 4:21 PM, "Michael Siomer (City Attorney)" wrote | am only discussing the subpoena duces tecum for tomorrow's deposition. 1am not discussing any other discovery requests You already have the general manual. You already have the SAPD documents that pertain to you. That leaves only documents Pertaining to writing reports, which, | believe, is also in the general manual ‘Also, I need to lt you know that | might have to have another individual testify about report writing, depending on the level of detail you wish fo get into. | would lke to see what happens tomorrow and iit s necessary | wil work with you to schedule ancther deposition for ‘a SAPD representative fo discuss roport wring, perhaps on Friday. Michael D. Siemer Assistant City Attorney LUtigation Division P.O. Box 839966, San Antonio, Texas 78283 Direct 210) 207-8784 / Fax (210) 207-4957 ‘The information contained in this emails confidential, intended forthe use of the individual or entity named above. Ii you ar@ not the intended recipient, or the representative or agent responsible for delivery ofthis email, you are hereby noilied that any dissernation, distribution or copying ofthis communication is strictly prohibited. I you received this in error, please roply and notily the sendor (only) and delete the message. Thank you. Original Message-—~ From: Denise McVea [maitomevead@icloud com) ‘Sent: Tuesday, November 18, 2014 3:59 PM To: Michael Siemer (Cty Attorney) Ce: Mark Kosanowch (SAPD) Subject: Fe: Subpoena deuces tecum That should give you plonty ol time o gather alo the ret ofthe documents reeponsive to my discovery requests Sent tr my iPhone (On Nov 18, 2014, at 9:42 PM, "Michael Siomer (City Attomoy)" weote: Doar Ms. MeVea: {intend to move to quash the subpoena duces tecumn unless you agree to withdraw it by 5:00 pm today. Sorry fr the short notice but Ineed to get the motion on file. The City of San Antonio's postion on the matter is as follows: Defendant, Gty of San Antonio moves to quash the subpoena deuces tecum on the grounds tha it does not provide a reasonable ‘amount ot ime to comply. The subpoena was served on Defendant an October 30, 2014 and the deposition Is 20 days lator on November 18, 2014. Rule 20 (b) (2) FCP provides that a deposition notice to a party deponent may bo accompaniad by a ‘document request under Rule 34 FRCP which species that the responding party has 90 days to respond. Plaint's subpoena duces tecum is fatally defective on its face because it requires compliance in an amount of time that is les than that specied in Rule 34 FROP, ‘Requests for documents from an opposing party are normally made pursuant to a request for production under FRCP 94, rather than 000022From: Denise McVea Subject: Re: SAPO representative Date: November 18, 2014 6:18:35 PM CST ‘To: "Michael Siemer (City Attorney)" Ge: "Mark Kosanovich (SAPD)" im sony, but the record just does not support most of your claims. Denise McVea Sent fom my iPhone (On Nov 18, 2014, at 6:00 PM, “Michael Siomar (City Attorney) wrote: Dear Ms. Mover: Please read Fle 90 (b) (8). A few things you should note 1. You are required to specty, in your deposition notice, the matters for examination with reasonable particularity. This you uterly failed to do. 2. Nowhere in Rule 30 (by(6) does it say that | am required to inform you in advance of the deposition who the designated ‘opresentative will be. For what i's worth, until a few days ago I dd not know myselt itis going to be Capt. James Flavin, I believe that he is qualifed to answer your questions in the areas thai you specified, with the possibia exception of issues related to preparing reports Ifnecessary, | wll arrange to have an individual more familar withthe details of report wring testify 3. Ful 30 (b)(6) provides that that multiple people may test ("..one or more officers, directors or managing agents") There is nothing Sinister about that. You are absolutely right, “if here is uncertainty about the knowledge base of the Geponent” then iis incumbent Upon me to get the individuals whe have the appropriate knowledge base to answer your questions, That's what | am tying to 60 ‘Throughout ths itigation both Mr. Kosanovich and | hava been extremely indulgent and have attempted to accommodate you in ‘recognition of the fact that you are pro se. You have made many basoless demands (lor example your demand that requests for production be responded to in less than 30 days) and personal accusations against me that are, frankly, delamatory and if you were an attomey are likely to have resulted in sanctions. You have previously been sanctioned by a cout (the Kissler case). You should kagp that in mind |1am going o go ahead and file the motion to quash because you have not agreed to withdraw the duces tecum. PLEASE NOTE: YOU ALREADY HAVE THE GENERAL MANUAL AND ALL DOCUMENTS PERTAINING TO YOU. Michael. Siemer ‘Assistant City Atorney Litigation Division P.O, Box 839966 ‘San Antoni, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 The information contained in this email is confidential, intended forthe use ofthe individual or entity named above. I you are not the intended recipient, or the representative or agent responsible for delivery ofthis email, you are hereby notiiad that any dissemination, Ce: "Mark Kosanovich (SAPO) 4 Attachments, 904 KB Sce ached ts wat le toy Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 Te lafonation oti inthis ral is confide, tended the use of hind or entity aed above Ifyou se nl he iene cpt othe teenie or ‘yen responsible for Giver a his ema, you wre ety ned tha ry dsersmaton, ion oeapyng of ns cmmuneaon sty pratbiedIfven eae ie ier, ese ep and nou the Sender (ny) nd lee he message Thar you om ee SKMBT C45 pdf (117 KB) IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS ‘SAN ANTONIO DIVISION DENISE MCVEA, 4 Plainiff), § § » ' SA.14-CV.00073-DAE i OFFICER T. SWAN; OFFICER SCOTT; § OFFICER BERNAL; UNKNOWN 5 ‘OFFICER W; AND SAN ANTONIO. i POLICE DEPARTMENT, ‘ Defendants) ‘ ORDER (ON THIS DAY, came on to be considered Defendust City of Sen Antonio's Opposed Motion to Quash Subposas Duees Tecum. Upon consideration of the Defendant, City of San ‘Antonio's motion, and the Plainf's response thereta, it isthe opinion of the Court thatthe Defendant City of San Antonio's Opposed Motion to Quash Subpocoa Duces Tecum should be, 99002in all hings, GRANTED. ‘THEREFORE, IT 1S ORDERED, ADJUDGED, and DECREED thatthe Defeodant City (of San Antonio's Opposed Motion to Quash Subpocaa Duces Tecum is GRANTED and thatthe ‘Subpoena Duces Tecum directed tothe Representative ofthe City of San Antonio is QUASHED, SIGNED on this day of 2014 UNITED STATES DISTRICT JUDGE SAPD DEPO pdf 757 KB) 90 0 0 6From: Denise McVea Subject: Re: Pending depositions Date: November 20, 2014 2:51:05 PM CST jichael Siemer (City Attorney)" Ce: "Mark Kosanovich (SAPD)" Mr, Siemer: ‘As Ihave explained, | am waiting fr the video camera that | ordered to be delivered. That will nt happen by the dates you have indicate for your cients. You and Mr. Kosanovich where extremely abusive and unprofessional when my vidao camera equipment faled ‘during Captain Flavin's deposition and you thought you ware off record. Mr. Kosanavich was especially abusive, taunting me and ‘mocking me in the most unprofessional way. Mr. Kosanovich is @ sociopath. He has no empathy for the people he comes in contact with ‘and the only thing that limits his abusive behavior is the record, indisputable evidence of his actions, For your pat. you assisted Mr. osanovich's abuse by throwing a tantrum and trying to close down the deposition completely. When | pointed out that | had sat through ‘many instances where you and Mr. Kosanovich interrupted my deposition to confer between the two of you while | sat quietly, you both began to berate and harangue me. This behavior is especialy chiling because you both spent a good portion of my deposition asking ‘about my status as a person who suffers from PTSD. | do not want to experience that abuse again, hava, in an earlier ema, sent you the dates that | wil be able to depose your cients. Itwas, afterall, your cynical attempt to hide the evidence of their testimony that has, caused the current situation. I you oppose this decision, you may take it up withthe court, Denise McVea ‘On Nov 20, 2014, a 2:25 PM, "Michael Siemer (City Attorney)" wrote: Dear Me, McVea: ot, Freeman is available tomorrow at 10:00 am and Det. Phelan is available Monday at 10:00 am, Monday, 11/24/2014 is the discovery deadiine under the Court's scheduling order. Both of these individuals are available on or before the deadline so there will be no need to extend the deadline. | am sorry that you are experiencing problems with your video recording deviee, Dut you also have ‘an audio recording device that you were using at the deposition of Capt. Flavin yesterday which would be suitable for non-stenographic recording ofthe depositions Please let me know as soon as possible if you are going to take the depositions tomorraw and Monday because | will need to reserve conference rooms. Michael D. Siemer ‘Assistant City Atorney Ligation Division P.O. Box 839968 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4957 ‘The information contained in this email is confidential, intended forthe use ofthe individual or entity named above. Ht you are not the intended recipient, or the representative or agent responsible for delivery of his emai, you are hereby notified that any dissemination, distribution or copying ofthis communication fs strictly prohibited. you received this in error, please reply and notily the sender (only) and delete the message. Thank you. Original Message-- From: Donise MeVea {raito:mevead@icloud com] Sent: Wednesday, November 19, 2014 4:58 PM To: Michael Siemer (City Attorney) (Go; Mark Kosanovich (SAPD) ‘Subject: Pending depositions. FYI: The videocamera | ordered will not artve unl Wednesday of next week. And | willbe unavailable ater Thanksgiving unt the frst \woek of December. Can you ask the deponents their availablity afer that and lat me know, please, Denise McVea ‘Sent from my iPhone AnN027ERROR: syntaxerror OFFENDING COMMAND: &HSA8I2.#/2>) 3-8VGHSA'I2.#/2>)3-W.#/#/02/)2 From: Denise McVea ‘Subject: Sgt, Scot's Call Log - All c\GAPD communications with Denise MeVea Date: November 21, 2014 12:47:08 PM CST To: Michael Siemer Ce: Dear Mr. Siemer: This is an attempt to confer regarding my request for Sgt. Scot's call og on the dates surrounding my arrest. As per our earlier iscussions, the call og is responsive to timely discovery request and Iam entitled to it. Please let me know if you will agree to provide it today orf must flea motion to compel ‘Also, | have had an opportunity to view the production regarding my interactions with the SAPD and itis sorely lacking. have made ‘dozens of non-emergency calls to the SAPD dispatch related to drug activity in my neighborhood as well as many emails and phone calls 1o vce officers and the racords department. Those were not provided. | do nt personally have a record of themn because of, sustained cyber attacks that destroyed those records since | stated documenting corruption in Bexar County. At any rate, these are ‘responsive to my request, are in the custody ofthe police department, and Inaed to know from you today i you intend to provide them, ‘And lastly, you have only provided a small portion ofthe documentation that goes into documenting incidents when they relate to me, Forinstance, you provided an incident whereby Kristina Combs’ mother accused me of felony theft of property from 1614 Martin Lutner king Drive on February 8, 2014 and whereby she made numerous other false statements to police, (SAPD 2014-01-10501) Please Provide the entre case file for tha incident. Also, you did not supply Phelan’ or Freeman's investigative reports. | know they exist because you provided them in other cases not related to me, Hook forward to hearing from you ASAP. Denise MeVea 000028From: Denise McVea Subject: Re: Pending depositions Date: November 20, 2014 2:51:05 PM CST To: "Michael Siemer (City Attomey)" Ce: "Mark Kosanovich (SAPD)" 3, am waiting forthe video camera that | ordered to be delivered. That will not happen by the dates you have indicated for your cients. You and Mr. Kosanovich where extremely abusive and unprofessional when my video camera equipment failed wrote: Dear Ms. MeVea: Det, Freeman is available tomorrow at 10:00 am and Det. Pholan is available Monday at 10:00 am. Monday, 11/24/2014 Is the ) 3-8VGHSA‘I2.#/2>)3-W.¥/#/02/)2 From: Denise McVea ‘Subject: Sgt, Scot's Call Log - All SAPD communications with Denise McVea Date: November 21, 2014 12:47:08 PM CST To: Michael Siemer Ce: Dear Mr. Siemer: ‘This is an attempt to confer regarding my request for Sgt. Scot's call og on the dates surrounding my arrest. As per our earlier iscussions, the call ag is responsive to timely discovery request and | am entiled to it. Please let me know if you wil agree to provide it today orf must fle @ motion to compel. ‘Also, | have had an opportunity to view the production regarding my interactions withthe SAPD and itis sorely lacking | have made Subject: Re: Paintit's Motion to Compal Date: November 24, 2014 2:51:17 PM CST To: "Michael Siemer' ci " "Mark Kosanovich" Bee: * “dmevea@tarola.us"™ PLEASE SEE ATTACHED MOTION TO COMPEL IN POF. (On Nov 24, 2014, at 12:45 PM, "Denise McVea" wrote Please see the attached motion to compel, filed today in U.S. District Cour. F ~ 2 $3 Altachments, 360 KE 000031From: "Michael Siemer (Cty Attorney)" ‘Subject: Order Granting Motion to Quash Date: November 25, 2014 2:19:24 PM CST To: ‘Denise McVea' Ce: "Mark Kosanovich (SAPD)" Subject: RE: Motion for Reconsoderation Date: November 26, 2014 9:01:15 PM CST To: ‘Denise MoVea' Ce: "Mark Kosanovich (SAPD) "ake no positon on this, I's between you and the Cour, Michael D. Siemer Assistant City Atfomey tigation Division P.O. Box 839966 San Antonio, Texas 78263 Direct 210) 207-8784 / Fax (210) 207-4957 ‘The information contained in this emails confidential, intended for the use ofthe indvidual or entity named above. I you are not the Intended recipient, or the representative or agent responsible for delivery ofthis emai, you are hereby noiiied that any dissemination, istribution or copying of his communication is stretly prohibited. you received ths in errr, please reply and notly the sender (only) and delete the message. Thank you. Original Message From: Denise MeVea [maito:mevead@icioud. com) ‘Sent: Wednesday, November 26, 2014 12:25 PM To: Michael Siemer (City Atorney) Ge: Mark Kosanovich (SAPD) ‘Subject: Motion for Reconsoderation | don't know it lam supposed to confer with you or not on this but Iam asking the court for reconsideration on his order to deny my request for e-fling, Any objections? Denise McVea ‘Sent from my iPhone 90033From: Denise McVea Subject: Re: Depositions of Phelan and Freeman Date: December 2, 2014 8:21:23 PM CST To: "Michael Siemer (City Attorney)" “Those dates and times for the depositions are fine. I the co freebie room isnot available, we can have them here at 1006 Wyoming Pease conti your conference room's availability ASAP. ‘Sent from my iPhone (On Nov 26, 2014, at 2:59 PM, Michael Somer (City Attomey) wrote: Dear Ms, MeVea: In response to your inquiry below, the City will agree to extend the discovery deadline only for the limited purpose of scheduling Det. Phelan’s deposition on December 9, 2014 at 10:00 AM and Det, Freeman's deposition on December 10, 2014 at 10:00 AM. The City will not agree to any further delay or extension of the discovery deadline and the agreement to extend the discovery deadline is strictly limited to the depositions of Det. Freeman and Det Phelan and does not apply to any other discovery in this case. Moreover, the agreement of the City to extend the discovery deadline, as set forth herein, is expressly conditioned upon your compliance with Fen. R. Civ. P. 30 (d) (1) (limiting the duration of a deposition to “1 day of 7 hours"). ‘The depositions must be conducted in my office (111 Soledad, 10" Floor). Please let me know if you agree by Noon on Monday, December 1, 2013. Our office will be closed from 3:00 pm today until 8:00 am Monday morning Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 ‘The information contained inthis emilis confidential, intended forthe use ofthe individual or entity named above. Ifyou are not the intended recipient, or the representative or agen responsible for delivery ofthis email, you are hereby notified that any dissemination, aistribution or copying ofthis communication is stritly prohibited. Ifyou received ths in eror, please reply and notify the sender (only) the message. Thank you. From: Denise McVea (mail ‘Sent: Monday, November 24, 2014 11:27 AM To: Michael Siemer (City Attorney) Gez Mark Kosanovich (SAPD) Subject: Depositions of Phelan and Freeman Mr. Siemer: have attempted to confer with you regarding the depositions of Detectives Freeman and Phelan. Since | have not heard from you, I have scheduled the depositions thusly: 1. Detective Phelan: December 3-4, 2014 commencing at 10 a.m. on December 3, 2104 2. Detective Freeman: December 9-10, 2014 commencing at 10 a.m. December 9, 2014, Please confirm your clients' availability for these dates, pursuant to federal rules. 900034From: "Michael Siemer (Cty Attorney)" Subject: RE: Conference Room Date: December §, 2014 4:05:27 PM CST To: ‘Denise McVea' Cc: *Mark Kosanovich (SAPD)" Dear Ms. MeVea: ‘Because you aid not respond to my e-mail before noon on Monday there was no agreement to extend the discovery deadline and | was forced to flea reply o your mation. Accordingly, we will await a ruling by the Court on yout mation, There is no need to continually demand confirmation that conference rooms are available. Any depositions of a City employee will take place at City offices. You may rest assured that we have numerous conference rooms, Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839965, ‘San Antoni, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 The information contained inthis email is confidential, intended forthe use ofthe individual or entity named above. Ifyou are not the intended recipient, or the representative or agent responsible for delivery ofthis emal, you are hereby notified that any dissemination, Ce: *Mark Kosanovich (SAPD)* Michael. Siemer@ sanantonio gov> Dear Ms. MeVea: You state that you are “conferring with [me] one last time”, but the motion you attached is file stamped indicating that you have already filed it. So you are not conferring before filing the motion. By now you know that the Court has already ruled on your previous motion to compel and denied it. Discovery in this case is over. Arguing with you is pointless. Iam not going to agree at this point to extend the discovery deadline. That ship sailed when you did not respond to my very generous offer by Monday, December | and I had to scramble on the first day back from Thanksgiving to file a response to your meritless motion. You had the opportunity to take the depositions of Phelan and Freemen within the discovery deadline but refused to do so. Then, after you filed your motion to compel, gave you another chance to which you did not respond until after I had filed my response to your motion. Let me be clear: when you did not respond to my e-mail by the deadline in the e-mail, the offer was withdrawn. So, no more depositions, no more discovery. Your First Amended Motion to Compel is (1) not timely; (2) not an “Amended Motion’ (you motion was denied, thus there is no pending motion that can be amended); and (3 frivolous. Please read Local Rule CV-16 (you can read it here: ttp-/www.txwd uscourts.gov/Rules/Online/CiviVev-16.pdf ). Finally, please stop wasting my time with your relentless e-mails. Ihave other matters to attend to that are, quite frankly, far more pressing than your lawsuit, Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 The information contained in this email is confidential, intended for the use of the individual or entity named above. Ifyou ae not the intended recipient, oF the representative or agent responsible for delivery ofthis email, you are hereby notified that eny dissemination, istribution or copying of this communication is strictly prohibited. Ifyou received this in error, please reply and notify the sender (only) and delete the message, Thank you. From: Denise McVea [mailto:mcvead@icloud,com] Sent: Monday, December 08, 2014 1:33 PM To: Michael Siemer (City Attorney) (Ce: Mark Kosanovich (SAPD); Barbara Wagner (City Attorney) ‘Subject: Discovery and Depositions Dear Mr. Seimer: Attached you will find my Amended Motion to Compel and Opposed Motion to Modify Scheduling Order, filed today in USS. District Court. I believe the amended motion clarifies some of the current issues related to discovery and itis my fervent hope that we can resolve these issues without unduly ANND37burdening the Court. To that aim, I have had time to read your response to my original Motion to Compel and it is my contention that your attempts to delay the December 9-10, 2014 depositions of SAPD detectives Jesse Freeman and James Phelan are without merit. In your motion, you ask the Court to limit the depositions of Freeman and Phelan to seven hours. In a previous email, you indicated that because I did not respond on December 1, 2014, you were “forced” to file a motion compelling my cooperation. However, I was traveling that weekend and was often without access to the Internet. As you know, I agreed to your time and date limitations on December 2. No controversy exists that would require us to further delay these depositions. The Plaintiff's position is that asking the Court to set a hearing for a moot issue is discovery abuse. Additionally, it is the Court's discretion to set deadlines, not counsels’. 1 agreed to your terms well before the deposition dates. Your decision to effectively call off the depositions a day after a deadline you arbitrarily set yourself places you dangerously close to performing a role reserved exclusively for judges. Iam conferring with you one last time in an effort to reason with you and get your agreement to proceed with the scheduled depositions of Detective Freeman and Detective Phelan on December 9 and 10" as per our earlier agreement. Please let me know by 5 p.m. today, December 8, 2014, so that I may notify the recording officer. Lappreciate your prompt attention to this matter. Denise McVea 90038From: “Michael Siemer (City Attorney)* Subject: RE: Depositons of Detectives Freeman and Phelan Date: December 8, 2014 4:39:39 PM CST ‘Denise McVea’ Cc: "Mark Kosanovich (SAPD)" Dear Ms. MeVea: I will not make detective Freeman and detective Phelan available on December 9-10, 2014 because (1) you did Not agree to those dates (and the other conditions) as set forth in my e-mail before the deadline to respond by noon on December I, 2014 and, therefore, there was no agreement to extend the discovery deadline; (2) you did not respond before I filed a response to your motion to compel and; (3) the Court, fully aware that I offered to extend the deadline but that you did not respond before the filing of the City’s response to the motion to compel, has ruled on your motion and denied it. The discovery deadline has passed, there was no agreement to extend it and you still have not shown anything even close to “extraordinary circumstances” to conduct discovery after the deadline. In fact, you pointedly refused to conduct the depositions of Freeman and Phelan before the deadline, even though I offered you two dates on which to do so. Iwill not agree to extend the discovery deadline as to document production. I will oppose any discovery motion You file related to document production because (1) at this time any motion you file regarding discovery is not timely (see Local Rule CV-16); (2) every objection asserted by the City was valid and should be sustained by the Court; (3) the City has produced all responsive, discoverable and relevant documents it was required to produce under the FRCP. Also, I never received a “Second Supplemental Request for Production” buy even if I had received it there would have been no requirement that I respond to it (again, see Local Rule CV-16).. Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 The information contained in this email is confidential intended for the use ofthe individual or entity named above. Ifyou are not the intended recipient, othe representative or agent responsible for delivery of this email, you are hereby notified that any dissemination, distribution or copying ofthis communication is strietly prohibited. Ifyou received this in error, please reply and notify the sender (only) and delete the message. Thankyou. fie From: Denise McVea {mailto:mcvead@icloud.com] Sent: Monday, December 08, 2014 4:00 PM ‘To: Michael Siemer (City Attorney) Subject: Re: Depositions of Detectives Freeman and Phelan {'m but that is not what the local rules say. If you could stop preaching for just a moment and acknowledge that I am attempting to confer with you regarding discovery. As I understand it, you will not make detective Freeman and detective Phelan available on December 9-10, 2014 even though I agreed to those dates. And you will not provide any more document production because it is your contention that discovery is closed. Is that correct? Again, this is an attempt to confer prior to filing a second amended motion to compel and motion for sanctions related to discovery. dm Sent from my iPhone ANN39On Dec 8, 2014, at 3:46 PM, Michael Siemer (City Attorney) wrote: The discovery deadline passed. If the Court does not intervene, then there will be no more discovery. There were no depositions to “cancel” because they were never scheduled. Discovery after the deadline ‘must be done by agreement. There was not an agreement to extend the discovery deadline because you did not respond to my e-mail by the deadline, See you on December 16. Michael D. Siemer Assistant City Attorney Litigation Division P.O. Box 839966 San Antonio, Texas 78283, Direct (210) 207-8784 / Fax (210) 207-4357 ‘The information contained inthis email is confidential, intended forthe use ofthe individual or entity named above. you are not the intended recipient, ofthe representative or agent responsible for delivery of this email, ou are hereby notified that any dissemination, distribution or copying of this communication is still prohibited. Ifyou received this in ero, please reply and notify the sender (only) and delete the mess hank you. From: Denise McVea (mailto: Sent: Monday, December 08, 2014 3:37 PM To: Michael Siemer (Cty Attorney) Subject: Re: Depositions of Detectives Freeman and Phelan Mr. Siemer: | carefully read the Court's Order several times and it in no way states that the depositions have been canceled. What it does say is that the Court will not intervene. At this point, the judge does not know the extent of our conferences, the agreement I made with you regarding the deposition dates, your and Mr. Kosanovich's harassment of me after establishing I suffer from PTSD, or a complete timeline relating to discovery. I think the full record supports us getting those depositions out sooner rather than later, don't you agree? eagerly await you response, dm Sent from my iPhone (On Dec 8, 2014, at 3:17 PM, Michael Siemer (City Attorney) wrote: Read it again. Focus on the part that says “denied”, Michael D. Siemer Assistant City Attomey Litigation Division P.O. Box 839966 San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 ‘The information contained inthis email is confidential, intended forthe use of the individual or entity named above. Ifyou ae not the intended recipient, or the representative or agent responsible for delivery ofthis NANNY‘email, you ae hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. Ifyou received this in eror, please reply and notify the sender (only) and delete the ‘message. Thank you. fas From: Denise McVea [mallto:mevead@icloud.com ‘Sent: Monday, December 08, 2014 3:16 PM To: Michael Siemer (City Attorney) ‘Subject: Re: Depositions of Detectives Freeman and Phelan Mr. Siemer, Thave read the Court's order and it seems to be saying pretty much what I wrote in my carlier email, that is, there is no reason to compel the depositions for tomorrow because that is something we have already conferred on and agreed to. Shall we meet at the same place at 10 a.m.? Sent from my iPhone On Dec 8, 2014, at 12:16 PM, Michael Siemer (City Attorney) wrote: Dear Ms. McVea: Please see the attached Order Denying Motion to Compel Discovery Response, <322759.pdt> SNLiCloud Mait huips:/wwwicloud com/message/currenvien-us/#view 2guid=messa, Lof2 Re: Discovery and Depositions 4 days ago 1:47 PM From Denise McVea To Michael Siemer (City Attorney) Actually, that’s not true. | did confer with you on December 2nd when you very clearly stated that you were not interested in cooperating. This is an attempt to confer before | fle my 2nd amended mation to compel and motion for sanctions. | think the full record is very different from what you have so far elected to share with the Court, dm Sent from my iPhone On Dec 8, 2014, at 3:41 PM, Michael Siemer (City Attorney) wrote: Dear Ms. MeVea: ‘You state that you are “conferring with [me] one last time”, but the motion you attached is file stamped indicating that you have already filed it. So you are not conferring before filing the motion. By now you know that the Court has already ruled on your previous motion to compel and denied it. Discovery in this case is over. Arguing with you is pointless. 1 am not going to agree at this point to extend the discovery deadline. That ship sailed when you did not respond to my very generous offer by Monday, December 1 and I had to scramble on the first day back from Thanksgiving to file a response to your meritless motion, You had the ‘opportunity to take the depositions of Phelan and Freemen within the discovery deadline but refused to do so. Then, after you filed your motion to compel, I gave you another chance to which you did not respond until after I had filed my response to your motion, Let me be clear: when you did not respond to my e-mail by the deadline in the e-mail, the offer was withdrawn, So, no more depositions, no more discovery. Your First Amended Motion to Compel is (1) not timely; (2) not an “Amended Motion" (you motion was denied, thus there is no pending motion that can be amended); and (3) frivolous. Please read Local Rule CV-16 (you can read it here: http://www.txwd.uscourts.gov/Rules/Online/Civiviov-16,pdf ). Finally, please stop wasting my time with your relentless e-mails. | have other matters to attend to that are, quite frankly, far more pressing than your lawsuit. Michael D. Siemer Assistant City Attorney Litigation Division 006042 P.O. Box 839966 ‘San Antonio, Texas 78283 Direct (210) 207-8784 / Fax (210) 207-4357 ‘The information contained in this email is confidential, intended for the use of the individual or entity named above. If 12/12/14 12:41 PEMCloud Mail hutps:/wwwicloud com/message/currenven-us/#Vview 2guid=messa, You are not the intended recipient, or the representative or agent responsible for delivery ofthis email, you are hereby notified thet any dissemination, distribution or copying of this communication is strictly prohibited. Ifyou received this in error, please reply and notify the sender (only) and delete the message. Thank you. From: Denise McVea [mailto:mcvead@icloud.com] Sent: Monday, December 08, 2014 1:33 PM To: Michael Siemer (City Attorney) Cc: Mark Kosanovich (SAPD); Barbara Wagner (City Attorney) Subject: Discovery and Depositions Dear Mr. Seimer: Attached you will find my Amended Motion to Compel and Opposed Motion to Modify Scheduling Order, filed today in U.S. District Court. | believe the amended motion clarifies some of the current issues related to discovery and it is my fervent hope that we can resolve these issues without unduly burdening the Court, To that aim, | have had time to read your response to my original Motion to Compel and itis my contention that your attempts to delay the December 9-10, 2014 depositions of SAPD detectives Jesse Freeman and James Phelan are without merit. In your motion, you ask the Court to limit the deposttions of Freeman and Phelan to seven hours. In a previous email, you indicated that because | did not respond on December 1, 2014, you were “forced! to fle a motion compelling my Cooperation. However, | was traveling that weekend and was often without access to the Internet ‘AS you know, | agreed to your time and date limitations on December 2, No controversy exists that would require us to further delay these depositions. The Plaintit's position is that asking the Court to set a hearing for a moot issue is discovery abuse. Additionally, itis the Court's discretion to set deadlines, not counsels’. | agreed to your terms well before the deposition dates. Your decision to effectively call off the depositions a day after a deadline you arbitrarily set yourself places you dangerously close to performing a role reserved exclusively for judges. | am conferring with you one last time in an effort to reason with you and get your agreement to proceed with the scheduled depositions of Detective Freeman and Detective Phelan on December 9 and 10" as per our earlier agreement. Please let me know by 5 p.m, today, December 8, 2014, so that | may notify the recording officer. | appreciate your prompt attention to this matter. Denise McVea 000043 12/12/14 12:41 PM.EXHIBIT JEXHIBIT K10 11 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 IN THE UNITED STATES DISTRICT couRT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DENISE MCVEA, PLAINTIFF, vs. SA-14~-CA-0073-DAE OFFICER T. SWAN, OFFICER SCOTT, OFFICER BERNAL, UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPARTMENT, DEFENDANTS . ORAL DEPOSITION OF DENISE MCVEA NOVEMBER 14, 2014 ORAL DEPOSITION of DENISE MCVEA, produced as a witness at the instance of the Defendants, and duly sworn, was taken in the above-styled and numbered cause on the 14th day of November, 2014, from 10:11 a.m. to 1:58 p.m., before Sharon L. McDonald, CSR, RPR, in and for the State of Texas, reported by machine shorthand, at the Office of the City Attorney, 111 Soledad, 10th Floor, San Antonio, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto. HILL COUNTRY COURT REPORTERS (210) 691-163310 11 12 13 14 15 16 uy 18 19 20 21 22 23 24 25 15 any condition? A No. @ Do you suffer from any psychiatric problems? A I have posttraumatic stress disorder and general anxiety disorder. Q Okay. And when were you diagnosed with having PTSD? A I don't remember Q What caused your PTSD? MS. MCVEA: I'm going to object, privilege Q (BY MR. KOSANOVICH) What privilege are you asserting, ma'am? a I think it's the doctor -- it's his position to diagnose me. Not me to diagnose myself for you. And if you have questions about any diagnoses, that you should refer those to the doctors, and they will determine whether or not your -- you should have that information Q Okay. Well, I'm asking you what caused your PTSD. A And I just explained to you what my answer was. Q Okay. Are you refusing -- A I'm declining to answer that question again. Q What has caused your general anxiety? A Same answer. Q You're refusing to answer the question? HILL COUNTRY COURT REPORTERS (210) 691-163310 1. 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 16 A I'm refusing to answer the question again. Q Okay. And on what grounds are you refusing to answer the question, the second question? A Privilege. Q Okay. And what -- A You're asking for medical information, privileged medical information. Q Okay. And why do you believe that's privileged? MS. MCVEA: Answer calls for speculation. Objection. Q (BY MR. KOSANOVICH) How does that call for speculation, ma'am? A You're asking me to speak to terms that should be spoken to -- spoken about by a doctor. @ So are you saying, ma'am, you don't know what caused your PTSD or your general anxiety? A I'm saying that you're asking for medical information and that medical information should be discussed with medical professionals. Q Well, I'm asking you, ma'am -- MS. MCVEA: Asked and answered. Objection Please move on. ° (BY MR. KOSANOVICH) I'm asking you, ma'am -- MS. MCVEA: Please move on. Asked and answered. HILL COUNTRY COURT REPORTERS (210) 691-163310 al 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a7] Q (BY MR. KOSANOVICH) Ma'am, I'm not going to move on. MS. MCVEA: Objection. Q (BY MR. KOSANOVICH) Ma'am, I'm not going to move on. I'm asking you -- A Then this is over. I'm not going to sit here and let you badger me. MS. MCVEA: Objection, badgering the witness. I'm not going to sit here and listen to you. I was very respectful to you when you sat there and inserted all of your objections, and I respected them What's good for the goose is good for the gander. You're not going to sit here and you're not going to bully me. I'm not intimidated by you. I find you very small. So you can sit there and play your little games and do your little baggage carrying for all your little buddies before they go to prison, or you can stick to the point and ask the question and respect me as a deponent. Q (BY MR. KOSANOVICH) Well, I'm going to ask you, ma'am, can you please explain to me -- A You've already asked that. I've answered your question to the best of my ability. If you don't like the answer, I'm sorry for you. Okay. But the point of the matter is, my dear, I've answered it, okay? HILL COUNTRY COURT REPORTERS (210) 691-163310 11 12 13 14 1s 16 ay 18 19 20 21 22 23 24 25 18 Q So -- A And you are obliged by the laws to move on. You can't sit here. You can't badger me, okay? Q I'm not badgering you, matam. I'm just asking -- A I'll be the judge of that. @ Okay. So you're going to be the judge as to whether I'm badgering you or not? A You are badgering me. I'm telling you that you're badgering because you've asked me the same question almost seven times now. Q Okay. A And I've already given you the answer. You don't like the answer, and you're continuing to ask the question MS. MCVEA: Asked and answered, objection. Move on. MR. KOSANOVICH: Well, I'll object to your sidebar. Q (BY MR. KOSANOVICH) How many times -- A And also, you're not the only one that gets to object, okay? MR. KOSANOVICH: Well, I'll object to the sidebar. MS. MCVEA: All right. HILL COUNTRY COURT REPORTERS (210) 691-163310 aL 12 13 14 15 16 17 18 19 20 an 22 23 24 25 19 Q (BY MR. KOSANOVICH) How many times have you been diagnosed with PTSD? A I don't know. Q Well, when did you start to have symptoms of PTSD? A I don't remember. Q When did you begin to have symptoms of general anxiety? A I don't remember. Q Okay. Who is the first person to tell you that you had general anxiety? A I have no idea. Q Which doctors have treated you for PTSD? A I cannot recall. Q When was the last time you were treated for PTSD? A I do not recall. Q When was the last time you were treated for general anxiety? aA I don't remember. Q What prescriptions have you taken within the past five years? aA In the past five years? I can't recall Q Have you taken any prescriptions in the past five years? HILL COUNTRY COURT REPORTERS (210) 691-163310 11 a 13 14 15 16 17 18 19 20 21 22 23 24 25 20 A I'm sure I have, but I can't recall what they are. Q Who gave you those prescriptions? A I don't recall. Q Why can't you recall that information? A I don't know why I can't recall it. I think it's very vague and five years is a long time. And as you know, I have been under enormous stress for the last five years, all of which you're quite privy to. And that affects memory. I have had to keep a lot of stuff in my brain. I've had lots of attacks. I've had a lot of people invading my privacy. I've had quite a bit of situations that really affected my memory for mundane things. Q Okay. Well, please explain to me who - A Can we get to the point about the lawsuit that's at hand here? Q = Well, matam -- A I feel like you're -- I feel like you're asking me questions that other people want to know. I feel like you're asking me questions that people outside of this particular lawsuit want to know, and I would like for you, if you could, just focus on this lawsuit. Q Well, ma'am, I get to generalize the questions that I want to ask you and I will ask the questions, and HILL COUNTRY COURT REPORTERS (210) 691-163310 a. 12 13 14 is 16 a7 18 19 20 21 22 23 24 25 21 if you don't want to answer the questions, you can agree to do that, ma'am, if you don't want to. A Well, I thought I was able to do that, but you sat there and badgered me for like 15 minutes the last time I tried to exert that -- exert that right. Q Well, and I'm asking you, ma'am, are you asking for mental anguish damages in this lawsuit? A Am I asking for mental anguish? I am. Q Okay. Are you asking for physical injuries damages in this lawsuit? A No. Q Okay. So you're not asking for any physical injury damages in this lawsuit? A No, not at this point. Q Well, then let's go back to your mental anguish damages. Have you ever had an occasion where you have been committed to a mental health care facility? A I have. Q Okay. What years did that occur? A I don't recall. Q How long ago? A I don't recall. Q When was the last time you were put into a mental health -- A I don't know. HILL COUNTRY COURT REPORTERS (210) 691-163310 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 Q -- care facility. A I don't recall Q = Why can't you recall that? A I just explained that to you. I have been under extreme stress for the last five years, much of which you're aware of. We can talk about that if you want, but, basically, it's about the corruption that exists here in Bexar County. It's about the fact that I have the unfortunate situation of being a poor pro se person trying to exert her rights in a corrupt Bexar County court system. I didn't realize when I started this project that this place was so corrupt, that half of the people in the court system were without lawyers, and that emboldened, unscrupulous attorneys and corrupt judges to circumvent and subvert the legal process, and that when I announced that I was going to be taking -- to opening up an information center and documenting all of those crimes, I became the victim of sustained and vicious attack by the lawyers, your -- your colleagues and judges, and that has been ongoing on an incredibly intense level for many, many years. Q Okay. A And so when I say that I don't recall these tiny details, it is because in order for me to still be able HILL COUNTRY COURT REPORTERS (210) 691-163310 aa 12 13 14 15 16 7 18 19 20 a1 22 23 24 25 23 to sit here and talk with you, I have had to develop strategy for being able to keep millions and millions of words and documents in some kind of semblance of order so that I can represent myself in front -- in a court system that is, by all accounts, diseased, okay? I hope that helps. MR. KOSANOVICH: I'll object to the responsiveness of the answer. What was the last question I asked, Sherri? (Reporter read requested text.) Q (BY MR. KOSANOVICH) At some point in time ma'am, have you ever been involuntarily committed into a mental health care facility? A No, sir. Q Have you voluntarily put yourself into a mental health care facility? A I'm assuming that I must have since nobody has ever snatched me up Q Okay. A The only time I've ever been involuntarily committed some place is when I was arrested on pretext by the police officer. Q Okay. So you've spent time in a mental health care facility, then? A Yes. HILL COUNTRY COURT REPORTERS (210) 691-163310 aL 12 13 14 15 16 17 1s 19 20 a1 22 23 24 25 24 Q How long were you there? A I don't remember. Q Do you remember which one it was? A I don't. Q Was it in Bexar County? A Yes. I'm sorry. What was it? It was -- yes Give me a minute. Laurel Ridge. Q Okay. And who paid for your commitment at Laurel Ridge? A I did. Q Do you receive government assistance? A I do. Q What type of government assistance do you receive? A Disability. Q What's your disability? A Posttraumatic stress disorder and general anxiety disorder. Q And did the government pay for you to be in Laurel Ridge or did you pay for that yourself? A I believe I paid for it. Q How much did that cost? A I don't recall. Q And you say that you get government assistance. You get government disability? HILL COUNTRY COURT REPORTERS (210) 691-163310 a 12 13 14 1s 16 17 18 19 20 a1 22 23 24 25 25 A Yes. Q And when was the last time you had to go for a physical exam or mental health exam to receive that? A I don't recall. Q Okay. Are you contending that you suffer mental anguish damages because of this lawsuit? A Yes. Q How much are you seeking? A I'm going to let the jury decide that. Q Okay. Well, what are you saying your mental anguish damages are? A I'm going to let the jury decide that. Q No, matam. I'm not asking about the amount. I'm asking about what are you saying that your mental anguish is? How does it manifest itself? A I don't understand the question. Q Okay. Well, can you describe to me your mental anguish? A I'm sorry. That is not clear. Q Well, how does your mental anguish -- how do you know you have mental anguish? MS. MCVEA: That is -- that is not a question. That calls for speculation and it's vague. can you be more specific? 2 (BY MR. KOSANOVICH) Sure. I'm asking you if HILL COUNTRY COURT REPORTERS (210) 691-163310 aL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 you're contending that you have mental anguish, how does it -- how does it manifest itself to you? Do you suffer from -- A How does -- how did these police officers by through their false arrest cause me mental anguish? Is that what you're asking me? Q No. What I'm asking you is: You're contending you have mental anguish. A I'm contending -- I'm not sitting here right now committing -- your vagueness about mental anguish -- it's too vague. You're going to have to be more specific or move on because you're just sitting here just like, please describe air. I mean, you know, yeah, there's air, and now you want me to sit here and try to describe it for you? Please be more specific. MR. KOSANOVICH: I'm going to object to the sidebar. Q (BY MR. KOSANOVICH) What I'm -- A I'm trying to help you form a question you seem to have difficulty with. @ I'm not having problems, ma'am. A You are having problems because you're asking the same question and I've told you that it's vague and it's unclear and you keep repeating it, so clearly you're having some problems. HILL COUNTRY COURT REPORTERS (210) 691-163310 1. 12 13 14 1s 16 17 18 19 20 2. 22 23 24 25 Q No, ma'am. What I'm asking you is: How does your mental anguish manifest itself? Is it because -- are you sleepless? Can you not concentrate? Tell me how it manifests itself A Generally or today or -- it's just too vague. I mean, how does air -- how does air exist. You know, what is air doing. You know, there's wind. There's breeze. You know what I'm saying? So when you ask that question please be more specific and I'd be glad to answer it, but it's too vague the way you're presenting it now Q Well, ma'am, I'm asking you to tell me how - A ‘This is going to be one of those days. MR. KOSANOVICH: I object to the sidebar ma'am. Q (BY MR. KOSANOVICH) I'm asking you to describe to me your mental anguish and how it manifests itself and | how it affects your daily life A My mental anguish? Q Yes. A The only time I have mental anguish is if somebody is causing me mental anguish. Do you understand that? Q = Not really. A Nobody sits here in mental anguish. Mental anguish is something that is caused to you by somebody HILL COUNTRY COURT REPORTERS (210) 691-163310 at 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 else. Understand? So I can't sit here and just vaguely describe the concept of mental anguish. But you're careful to try to get an answer from me without bringing in the perpetrators of the mental anguish that you're trying to get me to speak to. So there are lots of sources for mental anguish, and in order for me to answer that question, you're going to have to supply the source so that I can be specific about how that person or persons or situation caused me the mental anguish that you're so stuck on trying to get an answer to. Do you understand? MR. KOSANOVICH: I'll object to the sidebar, ma'am. A Well, can you ask the question more specifically? Q (BY MR. KOSANOVICH) Sure. How did Officer swan cause you mental anguish? A He caused me mental anguish by snatching me up from my business in the middle of a business event, by putting me in a -- in a soundproof vehicle against my will, by violating my civil right to be free from -- yeah, you can smirk if you want. MS. MCVEA: Let the record show that Mr. Kosanovich is smirking. A You know, it's not funny. It's not funny. It's HILL COUNTRY COURT REPORTERS (210) 691-163310 aL 12 13 14 1s 16 7 18 19 20 21 22 23 24 25 29 other people's lives. Your privileged and title life and the way that these officers are running around that town is not something to be smirking about. Q about A now. Q (BY MR. KOSANOVICH) Ma'am, I'm not smirking anything. You're smirking. I'm looking at you smirk right Stop smirking. Ma'am. Show me some respect. Ma'am, you will not tell me what to do I'm telling you to stop smirking Ma'am, you're not going to tell me what to do in this deposition. A Q Why not? You're too big? No. You're too big of a person? Matam -- You're a lawyer? -- I'm not going to argue with you You're special? No, I'm not, matam You're better than me? Ma'am, just answer the question What's the question? I asked you how did Officer Swan cause you HILL COUNTRY COURT REPORTERS (210) 691-163310 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 mental -- A Can you do it without a smirk on your face? Q Ma'am, I'm just asking you to answer the question. A But can you do it without a smirk on your face? Q = Matam, I'm not smirking. A Because what you're doing is you're making a hostile environment to me outside of something that this lady can't describe. Your smirks, your sneers, your silent scoffing -- Q Ma'am, I haven't -- A - is inappropriate. Q -- scoffed at you today at all. A Yes. I'm watching it and I'm seeing you do it. Now, they won't be able to see it unless I present it to -- MS. MCVEA: And I'd like the record to show that that's what you're doing, and I'm going to ask you to stop or I'm going to -- I'm going to -- I'm going to call the magistrate. Q (BY MR. KOSANOVICH) Ma'am, you can do whatever action you want, but you're not -- A Quit smirking. Q@ You're not going to put on the record what I'm doing. HILL COUNTRY COURT REPORTERS (210) 691-163310 1 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 aa A I am putting on the record because you're not. See that's the thing. You people are always doing these things. Q Really? A With the idea of not letting it get to the record. Listen, I've got documentation to show just how much you guys try to keep off the record Q Ma'am, I've asked you to answer the question and you continue to evade answering the question. I'm asking -- A I'm not trying to. I'm asking you to be professional and you seem to have a hard time doing that I'm going to sit here and I'm going to cooperate with you, but I'm not going to sit here and suffer your smirks and your snarls and your sneer. Q Ma'am, I don't have -- A You have a smirk on your face right now. Q Ma'am, you're smirking the entire time you're sitting here. I don't understand what you're - A Now all of a sudden I'm smirking. You didn't mention it for the record a minute ago. Q Ms. McVea, I'm asking -- (Simultaneous discussion interrupted by the court reporter.) Q (BY MR. KOSANOVICH) Ms. McVea, I'm asking -- HILL COUNTRY COURT REPORTERS (210) 691-163310 11 12 13 14 15 16 7 1s 19 20 21 22 23 24 25 32 A I would like to finish my sentences. Q I've asked you to answer the question, Ms. McVea. If you want -- A Yes. And I'm asking you -- (Simultaneous discussion interrupted by the court reporter.) Q (BY MR. KOSANOVICH) If you want to continue to be obstructive, Ms. McVea, the record will reflect that A Yes. And if you're going to continue to create a hostile environment, the record will reflect that. Now, I know it's usual -- Q Ms. -- A I'm talking. The man said -- I mean, the lady. Excuse me. I'm sorry. The lady has asked you and me to not interrupt each other. Now, I'm talking. I am here on the record saying that you are, through your body language, your facial expressions, your guffaw, your scoffing, your smirks, your sneers, are creating a hostile environment for me. I'm asking -- I'm putting it on the record because the stenographer cannot see that, and the record won't show it unless I'm saying it. I'm telling you that unless you behave, stop your shenanigans, then -- you can hardly help yourself, can you? Pull it together. I want you to pull it together. HILL COUNTRY COURT REPORTERS (210) 691-163310 lat 12 13 14 1s 16 a7 18 19 20 2. 22 23 24 25 33 Q Ms. MeVea, you're not going to treat me like that. You will not sit here and dictate that. If you want to answer the question, Ms. McVea -- MR. KOSANOVICH: I'm objecting to your sidebar and I'm objecting to your sidebar comments. Q (BY MR, KOSANOVICH) I've asked you a very simple question about how my client caused you mental anguish. A And as I tell you that, I don't want to see you smirking -- Q Well, Ms. Mevea -- A -- and scoffing. Q Ms. McVea. A I don't have to sit there and watch you doing that. It's unprofessional. Q Well, Ms. McVea, that's your interpretation of what's occurring. That's not mine. A Well, of course, it isn't, but you know that's what you're doing. Q No, ma'am. You don't know what I'm doing. A I'm watching you do it. Q Ms. McVea, just answer the question. A Would you stop smirking? Q Ms. McVea -- A You can't even -- as soon as you ask the question -- it's almost like you've been trained. Pull HILL COUNTRY COURT REPORTERS (210) 691-163310 a 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 34 yourself together. Q Ms. Mevea -- A I'll answer the question. MR. KOSANOVICH: I'm going to object to the sidebar. MR. SIEMER: I'm going to object to the condescending remarks and the condescending look that you have on your face right now. MS. MCVEA: This is a look of frustration, Mr. Siemer. MR, SIEMER: And the condescending look MS. MCVEA: This is a -- this is a look of | frustration. I'm sorry if you are not able to discern what is frustration and what is condescension, but the look that I have on my face, the experience that I'm having is one of frustration. MR. KOSANOVICH: I'm objecting to the sidebar. MS. MCVEA: He's talking to me. MR. KOSANOVICH: I'm objecting to the sidebar. Ms. MCVEA: Well, I'm objecting to his sidebar. I'm not going to sit here and be bullied by you two, okay? HILL COUNTRY COURT REPORTERS (210) 691-163310 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 MR. KOSANOVICH: Nobody is bullying you Ms. MeVea. I'm -- MS. MCVEA: He had something to say to me and I'm addressing it and you can't stop me from addressing him. If he doesn't want me to address him then he should be quiet. Q (BY MR, KOSANOVICH) Ms. McVea, I'm simply asking you questions, and you refuse to answer the question A Oh, my God. You're not simply answering -- asking the question. Q Well, I'm asking you, ma'am: What mental anguish damages did Officer Swan cause you? A ‘That's not the -- you changed the question. ask the question -- can she look and see? I mean, it was a while back, but that's not the question that you asked me. Q Okay. I'm asking you a new question A All right. What exact question? Q What mental anguish damages did Officer Swan cause you? A Damages? What do you mean when you say "damages"? Q Ma'am, what are you asking for as far as damages from Officer Swan? A I've already explained to you that the jury will HILL COUNTRY COURT REPORTERS (210) 691-163310 an 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 decide the damages. Q And I'm asking you: How did Officer swan's mental anguish manifest itself in you? How did it -- A Repeat the question. Q == affect you? A Repeat the question. Q I've asked you, ma'am: How did Officer Swan's actions mentally damage you? A ‘They damaged me by arresting me. I belong -- do you want the -- I'm going to tell you. I live in America. I have been taught my entire life that a police officer just can't come and snatch you up without probable cause and take you away from your business as though this was some Nazi-driven country. That we have, as Americans, rights. And when he came and stepped on that, when he came, interrupted my commerce, took control of my workers, took control of my products, took control of me, myself, my human person, and in front of hundreds of witnesses arrested me on a trumped up charge, that caused me enormous mental anguish. Q Well, how are you measuring your mental anguish, then, ma'am? a I don't understand that question. Q Well, you said it caused you enormous mental HILL COUNTRY COURT REPORTERS (210) 691-1633WITNESS NAME: DENISE MCVEA DATE: NOVEMBER 14, 2014 CHANGES AND SIGNATURE CHANGE REASON 180 HILL COUNTRY COURT REPORTERS (210) 691-1633EXHIBIT Lpb Dfermetinn ~ Sf frctou? 1g i o Uet 4 43 Anprrichhe 6 Celt cate taped Lt cause no. saz STATE OF TEXAS, § IN THE COUNTY COURT Plaintiff § § ve § 12TH JUDICIAL DISTRICT § DENISE MCVEA, § 8 Defendant. § BEXAR COUNTY, TEXAS DEFENDANT'S AMENDED MOTION TO SET ASIDE INDICTMENT OR INFORMATION AND MOTION FOR DISMISSAL COMES NOW DEFENDANT DENISE MCVEA and files this Amended Motion To Set Aside Indictment or Information and Motion for Dismissal, withdraws her Motion for Recusal and Disqualification of Judge Scott Roberts, and would respecifully show the Court the following: I, INTRODUCTION This is a criminal misdemeanor cause against Defendant Denise McVea, brought by the State of Texas through the auspices of the Bexar County/City of San Antonio District Attorney's Office in November 2013. The State alleges that Defendant McVea assaulted Kristina Combs and caused physical injury to Kristina Combs on or about November 2013. Defendant asserts that on the day in question, she was the victim of assault and battery perpetrated on her by Kristina Combs, that Kristina Combs assaulted and battered McVea and then, through false statements made to San Antonio Police Department officers, caused McVea to be falsely arrested on this charge (Defendant's Exhibit F). MOTION TO SET ASIDE INDICTMENT. 1 SUIT NO. 443420Defendant further asserts that Combs attacked McVea and gave false information to police as part of a widespread conspiracy on the part of judicial officers in Bexar County to cover up unethical, improper, and unlawful activity involving Kiistina Combs and other judicial officers doing business in the Bexar County Courthouse. (Defendant's Exhibits B, C) Defendant further asserts that criminal charges have been brought against her in the absence of any evidence to support it, and that the prosecution of Defendant has been perpetrated outside of the constraints of Texas law and rules of procedure. Defendant asserts that no evidence exists to support misdemeanor criminal assault charges against Defendant, that defects exists in the indictment or information, that the indictment or information has defects of form and substance, that there is an absence of an indictment or information, and that the Court has failed to provided Defendant with a speedy trial. Consequently, Defendant asserts that this case should be dismissed as a matter of law. IL EVIDENCE In support of this motion, Defendant McVea directs the Court to the following evidence, all of which has been previously provided to Prosecutor Matthew Ludowig: 1 A DVD disc containing two versions of a video recording taken by Denise McVea on the date of the incident. That DVD is hereby attached as Defendant's Exhibit A and herein incorporated by reference. There are two files on the DVD: 1.) a raw video recording of the incident and 2.) a slowed down version of the incident at the moment of encounter Defendant will testify that Exhibit A is a true and correct copy of the ‘MOTION TO SET ASIDE INDICTMENT 2 SUIT NO, 443420video that she recorded the day of the incident and that outside of adding slow motion effects and explanatory text to the second video file, the videos have in no other way been altered. Plaintiff's sworn Motion for Recusal and Disqualification and Request for Judicial Notice as filed in Cause No. 2013-CI-03010, styled McVea v. Galbreath, et al,, including Attachments, That Motion and attachments are hereby attached as Defendant's Exhibit B and herein incorporated by reference. “Federal Grand Jury Indicts Former Texas State Judge on Bribery, Extortion, and Wire Fraud Charges,” Federal Bureau of Investigations official website, June 9, 2014; and “FBI to courthouse: Your phone has been tapped”, Guillermo Contreras, San Antonio-Express News, February 21, 2014. These documents are attached as original attachment A to Defendant's Exhibit B, and incorporated herein by reference. Appellant/Defendant Denise McVea’s Out-of-Time Motion for New Trial Based on Newly Discovered Evidence and Supporting Affidavit, in Cause No. 2013-CI-14927, styled Kissler v. McVea, filed as an original Attachment B to Defendant's Exhibit B, is hereby attached to this motion and herein incorporated by reference, Defendant will testify as to how she learned that Kristina Combs had committed fraud in the eviction of Defendant from a lawfully occupied property, how that fraud caused Defendant to lose thousands of dollars in real and ‘MOTION TO SET ASIDE INDICTMENT 3 SUIT NO. 44342010. personal property, and how this criminal case against McVea is part of a conspiracy of judicial officers to cover up a series of frauds perpetrated by Kristina Combs. Plaintiff's Motions for Continuance and Motion to File Late Response as. filed as an original Attachment C to Defendant's Exhibit B and herein incorporated by reference. Letter from Denise McVea to Bexar County Civil Courts Staff Attomey Dinah Gaines from Denise McVea objecting to default judgments and denials of pro se litigants’ affidavits of inability in Bexar County civil district court, May 8, 2013, and supporting notifications, an original Attachment D to Defendant's Exhibit B and herein incorporated by reference. Certified Questioned Document Letter by forensic expert document examiner Wendy Carlson, June 4, 2014 is hereby attached as Defendant's Exhibit C and herein incorporated by reference. Communications from Defendant to Assistant District Attorney regarding evidence in this case is hereby attached as Defendant's Exhibit D and herein incorporated by reference. Reporter's Record, Trial Cause No. 443420, The State of Texas v. Denise McVea, July 14, 2014, hereby attached as Defendant's Exhibit E and herein incorporated by reference. SAPD Report, Offense Case# SAPD13252834, hereby attached as ‘MOTION TO SET ASIDE INDICTMENT 4 ‘SUIT NO. 4434201 Defendant's Exhibit F and herein incorporated by reference. 11. Testimony of Denise McVea. Ill. BACKGROUND Defendant was arrested for misdemeanor assault - bodily injury on the basis of false statements to police on or about the 16% of November 2013. She hired a defense attorney, Joe Gonzales immediately after, but was forced to fire Gonzales and announce pro se in the matter because Gonzales informed her that he would not provide pre-trial representation, that he would begin representation after a trial date was set, and would at that time charge McVea an additional $3000. Defendant had already paid Gonzales $3500, and was able to recoup only a portion of that money. To Defendant's belief and information, Gonzales was and continues to be an active participant in the conspiracy to cover up judicial crimes. (On May 29, 2014, Defendant, acting in propia persona, filed a Motion for Discovery, which Judge Roberts granted in part and denied in part. However, during the July 14, 2014 discovery hearing brought by Defendant, Judge Roberts ruled that the prosecutors would be able to continue withholding all evidence against Defendant, including the names of material witnesses, until 30 days before trial. (Defendant's Exhibit F, page 16, line 18). No trial date has been set. In the nine months Defendant has been under the supervision of the court, the State has failed to present sufficient indictment or information in Court. The State has been in possession of ample exculpatory evidence, provided to ‘MOTION TO SET ASIDE INDICTMENT 5 SUIT NO. 443420Assistant District Attorney Matthew Ludowig on various occasions since commencement of this cause of action by Denise McVea, (Defendant's Exhibit D). IV. ARGUMENT AND AUTHORITIES It is well established that, upon the hearing of the written motion to quash the indictment or information, the facts stated in the motion having been established by affirmative proof, the trial court should set aside the charging instrument and discharge Defendant. 200 US. 316 - Rufus Martin v. State of Texas. A. The indictment of information in this case is not based on a valid complaint. Pursuant to Art. 27.08 of the Texas Rules of Civil Procedure, in addition to any other grounds authorized by law, Defendant moves the court set aside the indictment or information in this case because it was not based upon a valid complaint; Defendant will show proof and testimony that the information provided in support of this criminal action against her is based on widespread fraud, false information and conspiracy. Defendant especially excepts to the indictment on the ground that no evidence supports it. Article 28.01 of the Texas Code of Criminal Procedure allows for the quashing of a misdemeanor indictment when there is no evidence to support it. Prosecutors must be made to show the evidence that they feel allows them the authority to continue to prosecute Ms. McVea or the indictment should be quashed. Defendant excepts to Judge Robert's order on the July 14, 2014 during Defendant's Motion for Discovery and Inspection, that relieves prosecutors from their duty to show its evidence to Defendant after nine months of bringing this charge against Defendant. MOTION TO SET ASIDE INDICTMENT 6 SUIT NO. 443420Further, McVea will testify and give proof that 1. Kristina Combs was the attacker, 2, Kristina Combs gave false information to police, 3. Kristina Combs attacked McVea as part of a larger conspiracy to cover up fraud, forgery, burglary, and other state and federal felonies, and 3,, other judicial officers of Bexar County assisted her in those crimes. (Defendant's Exhibit B). B. The indictment or information in this case is defective. The prosecutor in this case has failed to make presentment of the required elements of the stated offense to continue this unconstitutional, harassing, abusive, and malicious criminal action against Defendant. To wit, Texas Penal Code Sec. 22.01 defines assault thusly: “A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another.” The indictment or information is insufficient showing that Defendant committed the elements of this offense. Further, and more importantly, based on the evidence that is available in this case - all of it favorable to Defendant -the likelihood that the State could ever gather evidence to support those elements is a virtual impossibility. The facts here are clear cut, supported by ample and diverse evidence, and they all reveal that this cause of action has never had a scintilla of evidence to support it, much less allow the state to impinge on Defendant's liberty for more than nine months. As a consequence of this reality, the charging instrument should be set aside and Defendant discharged from this cause of action as a matter of law. TCCP Art. 27.02. MOTION TO SET ASIDE INDICTMENT 7 SUIT NO. 443420C. Prosecutors have failed to provide Defendant with a speedy trial. It has been more than nine months since prosecutors charged Defendant with this offense. Defendant asserts that the interval between accusation and trial has crossed the threshold dividing what could be considered an ordinary delay from a "presumptively prejudicial" delay. State v. Munoz, 991 SW.2d 818 (Feb. 17, 1999). The essential ingredient of the Sixth Amendment's speedy trial guarantee is “orderly expedition and not mere speed.” United States v. Marion, 404 US. 307, 92 S.Ct. 455, 459-60, 30 L.Ed.2d 468 (1971) (Gixth Amendment speedy trial guarantee “would appear to guarantee a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him”). Since 1972 United States Supreme Court precedent has required courts to analyze federal constitutional speedy trial claims “on an ad hoc basis” by weighing and then balancing four factors: (1) length of the delay, (2) reason for the delay, (3) assertion of the right, and (4) prejudice to the accused. Barker v. Wingo, 407 US. 514, 92 S.Ct. 2182, 33 LEd.2d 101, 116-17 (1972), This balancing test requires weighing case-by-case “the conduct of both the prosecution and the defendant.” Barker, 33 L.Ed.2d at 116. No single Barker factor is a “necessary or sufficient condition to the finding” of a speedy trial violation. Barker, 33 L.Ed.2d at 118. The “related” Barker factors “must be considered together with such other circumstances as may be relevant.” Id. Defendant argues that prosecutors have provided no reason for the delay and that the Court prejudiced Defendant when it ruled that prosecutors could withhold evidence indefinitely without setting trial. CCCPArticle 32A.02,. A court shall grant a MOTION TO SET ASIDE INDICTMENT 8 SUIT NO, 443420motion to set aside an indictment, information, or complaint if the state is not ready for trial within ".., 90 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for more than 180 days;..." CCCP 32A.02(2). D. Prosecutors failed to present indictment or information. Prosecutors attempt to allege an offense of assault-bodily injury, but have failed to allege with specificity the manner in which Defendant allegedly assaulted and caused bodily injury to Kristina Combs in violation of Tex. Penal Code 22.01. A trial court has the power to dismiss a case without the State's consent under Texas Code of Criminal Procedure Article 32.01. See id. at 612 n. “When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever is later.” CCCP 32.01. Defendant has been on bail since November 2013, more than 280 days since charged. As matter of law, this cause should be dismissed. D. There is insufficient evidence to support this cause. Defendant asserts that the prosecutor has a duty to present the case to a grand jury or a judge and show that the prosecution has enough evidence to establish probable MOTION TO SET ASIDE INDICTMENT 9 ‘SUIT NO. 443420cause to believe the defendant committed a crime. As with arrests, the evidence must show an objective factual basis for believing that the defendant committed the crime. If the grand jury or the judge does not find probable cause, then the charges must be dismissed. The test for whether a charging instrument gives adequate notice in the face of a motion to quash was stated in Drumm v. State, Tex.Cr.App., 560 S.W.2d 944: "Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal accusation from the perspective of the accused.... The accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish. When the defendant petitions for sufficient notice of the state's charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice.” Cruise v. State, Tex.Cr.App., 587 S.W.2d 403; Haecker v. State, Tex.Cr.App., 571 S.W.2d 920. Prosectors have failed to give sufficient notice to Defendant, largely because they do not have any evidence to share with the Court. Defendant asserts that if prosecutors are unable meet the burden presented by Defendant's testimony and evidence, this case should be dismissed as a matter of law. Art. 21.19, V.A.C.CP. V. CONCLUSION Prosecutors have not by indictment or information set forth an offense in plain and intelligible words as required by Tex. Code Crim. Pro. Ann. art. 21.02 and Defendant is ‘MOTION TO SET ASIDE INDICTMENT 10 SUIT NO. 443420denied notice of the allegations against her as required by the US. and Texas Constitutions, and Tex. Code Crim. Pro. Ann, art, 21.11, Because prosecutors cannot meet their burden of showing just cause for this prosecution, Defendant is unable to prepare a defense against the same allegations. Further, the information does not allow Defendant to plead this cause in bar upon subsequent re-prosecution, as required by ‘Tex. Code Crim. Pro. Ann. art. 21.04. VLPRAYER WHEREFORE Defendant prays that upon final hearing that State of Texas be made to show evidence of its claims, that Defendant be discharged from this prosecution; that the Court set aside this indictment or information. Respectfully submitted, Le Denise McVea, In Propia Persona 1006 Wyoming Street San Antonio, Texas 78203 (210)316-3638 ‘MOTION 0 SEF ASIDE INDICTMENT n ‘SUIT NO. 443420CERTIFICATE OF SERVICE On March 27, 2014, a copy of the foregoing instrument was served, in compliance with Texas Rules of Criminal Procedure, on the following in the manner listed below: Matthew Ludowig District Attorneys’ Office HANDDELIVERED ~ Denise McVea 1006 Wyoming Street San Antonio, Texas 78203 MOTION TO SET ASIDE INDICTMENT 2 SUIT NO. 443420INFORMATION - CLERK’S ORIGINAL NAME: DENISE ELAINE MCVEA JN: 1604556-1 SID: 368741 COUNTY COURT CASE NO: 443420 MG. NO. 208330 OFFENSE CODE/ CHARGE: 191302 - ASSAULT-BODILY INJURY 1h 20 IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: Now comes the undersigned Assistant Criminal District Attorney of Bexar County, Texas, upon the aitidavit of afiant, hereto attached and made a part thereof, and in behalf of sic State presents in the County Court at Law No. 12 of Bexar County, Texas, that heretofore, to-wit: in said County of Bexar and State of Texas, and before the making and filing of this information, on or about the 16th Day of November, 2013, DENISE ELAINE MCVEA, hereinafter referred to as defendant, i then and there intentionally, knowingly, and recklessly cause bodly injury to another, namely: Kristina Combs, hereinafter referred to as complainant, by STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT; against the peace and dignity of the State. Assistant Criminal District Attorney Bexar County, TexasCOMPLAINT t CLERK’S ORIGINAL NAME: MCVEA, DENISE ELAINE OFFENSE / CHARGE: MA ASSAULT-BODILY INJURY OFFENSE CODE: 131302 MAGISTRATE NO: a £6 2S i YO COUNTY COURTCASENO: _ Y47¥20 IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: Before me the undersigned authority on this day personally appeared affiant, who after being duly sworn by me on oath deposes and says that affiant has good reason to believe and does believe that in the County of Bexar and the State of Texas, and before the making and filing of this complaint, on or about the 16TH day of NOVEMBER, 2013, MCVEA, DENISE ELAINE committed the offense of MA ASSAULT-BODILY INJURY against the peace and dignity of the State. LPSAD Affiant SWORN TO AND SUBSCRIBED before me by the affiant, a credible person, on this_/4 day of _AUW 2098, Crew Deputy District Clerk Bexar Calinty, TexasEXHIBIT MDenise McVea 9; Wing Set # Sa en ess ADI Ph: ONE FEM: dveneurapenoeng Date: May 1, 2014 Matthew Ryan Landowig Asst. Criminal District Auorney 101 W. Nueva, th F. Sau Antonio, TX 7820: Phy 210-335-2430, Fax: 210-335-2884 nauewludowigi@bevarong 106 Dear Matthew, Today 1 emailed you my motion for new (ral which I fied yesterday in Bexar County District Court. I for some reason it did not go through, you may find it online at: hup:/Anww.scribd.com/doc/2323 1433 1/Motion-to-Abate-Appeal-Pending-NEW-TRIAL. Please take the time to read the exhibits thoroughly. As [ mentioned in the email, Kristina Combs and the other heretofore nameless “witnesses” related to Cause No. 2013-CC-443420 have been involved in criminal fraud, assault, theft, conspiracy, and other state and federal felonies. Thave already provided you with video recorded proof that Combs assaulted me the day of my arrest. As [ recall, your interest at the time was geared toward getting that proof quashed so that a jury might never sce ity an unfortunate stance to take since a prosccutor’s mission is to punish crime, not cover up crime. At any rate, the auached evidence is more proof that the assault that occurred against me that day and my subsequent irest was part of a protracted criminal conspiracy. Because you as the proseculor have no evidence outside of Kristina Combs' word that Tever attacked her, and because documentation in your possession reveals her to be a repeated liar, and given that you have ample evidence that I was, in fact, the victim in the encounter, your continued prosecution of this case can only be considered malicious. Your insistence on prosecuting me given the overwhelming evidence against you is dubious at best, and sheds some light as to why federal authorities have {aken such interest in the question of corruption and illegality among judicial officers inhabiting the Bexar County Courthouse. You should be aware by now that the people you are assisting no longer have anything worth protecting. By making a lawful, ethical, and objective assessment of the evidence in this case and acting accordingly, you will be demonstrating appropriate respect for the law and continue to develop into the kind of judicial ollicer the citizens of San Antonio and Bexar County deserve. L will see you on July 14, 2014 in Judge Roberts’ court. Sincerely, Com Denise McVea DEFENDANT'S oid sie)EXHIBIT NEXHIBIT OUNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DENISE MCVEA, Plaintiff; v. SA-14-CA-0073-DAE SAPD OFFICER T. SWAN, SAPD OFFICER SCOTT, SAPD OFFICER BARRAJAS (OR BARAJAS), UNKNOWN OFFICER 1, SAN ANTONIO POLICE DEPT., CITY OF SAN ANTONIO, Defendants. (i tan een cn en an tan cn an ttn ttn con AFEIDAVIT OF DENISE MCVEA IN SUPPORT OF PLAINTIFF'S MOTION FOR RECONSIDERATION, SECOND AMENDED MOTION TO COMPEL DISCOVERY, MOTION FOR SANCTIONS & 2ND AMENDED OPPOSED MOTION TO MODIFY THE COURT’S SCHEDULING ORDER STATE OF TEXAS wan COUNTY OF BEXAR BEFORE ME, the undersigned notary, on this day personally appeared DENISE McVEA, the affiant, who, being by me duly sworn, deposed as follows 1. My name is Denise McVea. I am above the age of 18 years, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. lam the Plaintiff in the above styled and numbered suit. 3. To the instant motion, I attached as Exhibit N a video clip that I personally recorded on or about November 15, 2013, just prior to being arrested for assault. I began video recording attorney Kristina Combs and others removing personal items belonging to me and putting them in the back of a truck. I believed that to be theft in violation of Texas law. I wanted proof of Combs’ actions. I personally Alfidavit of Denise MeVea 125.14 1 ‘SAs14-CA-O073-DAEconverted key portions of the video clip into slow motion and inserted explanatory text between key frames. I performed no other modifications to the video clip and the video is clip is a true and correct recording of what occurred that day. The violent movement of the screen at the audio point where Combs snarls, “Get off the property” was the result of Combs violently striking the hand holding the videotape. The strike caused a bloody gouge on my left hand. To my belief and knowledge, Combs was attempting to destroy the phone and video when she struck out at my hand. Kristina Combs is registered as an attorney with the Texas State Bar, even though in my dealings with her in Bexar County Court, she never once displayed any understanding of state law or rules of civil procedure. 4. On November 19, 2014, I conducted the deposition of San Antonio Police Department Captain James Flavin in the city of San Antonio offices located at 111 Soledad St., San Antonio, Texas 78205 as part of discovery in this case. Present were myself, the deponent Captain Flavin; Mark Kosanovich, Counsel for Defendant SAPD officers Swan and Scott; Michael Siemer, Counsel for Defendant City of San Antonio; and Texas Notary Public Ben Davila. 5. At one point in the deposition, while I was deposing Captain Flavin, Michael Siemer began punching keys on his cell phone. The cell phone had been programmed to give tonal feedback at a high volume. I explained to Mr. Siemer that the noise was distracting and asked him to silence his phone. Mr. Siemer responded rudely that he was not going to “stop using my phone”. I clarified that I didn’t need him to stop using it; I was just requesting that he silence it. Mr. Siemer responded in an exasperated and angry fashion, but briefly stopped tapping the keys. When I returned to interviewing Captain Flavin, Mr. Siemer again began tapping the keys on his phone and the volume remained the same. From my vantage point, I could see that the phone's screen was on the start up screen, that is, Mr. Siemer did not appear to be texting anyone or dialing a number. He was just pressing random keys. To my belief and knowledge, Mr. Siemer was pressing the keys to distract and aggravate me. I called a halt to the proceedings so that Mr. Siemer could “get a hold of his phone.” When he silenced the phone, I continued the deposition of Captain Flavin. 4, During the deposition of Captain Flavin, my video camera malfunctioned. I announced a break and informed the group that I was calling a break so that I could attend to the video-recording equipment. I turned off the back-up audio recorder. Immediately after I turned off the audio recorder, Mr. Siemer and Mr. Kosanovich began loudly remonstrating me. Because the lawyers’ angry responses seemed disproportionate to the circumstances, I turned back on the audiotape in full view of Mr. Kosanovich and Mr. Siemer. For the next four minutes, I audio-recorded my exchange with Mr. Kosanovich and Mr. Siemer. I attempted several times to explain that my calling a break was appropriate but both men continued to harass, interrupt, and berate me. At one point I turned to Mr. Kosanovich who was Affidavit of Denise McVea 12-15-14 2 ‘SAIS-CA-OI7S-DAEmimicking me, and was unsettled to see a look of complete hatred and disgust on his face. He continued to sneer and berate me until abruptly, he stood up, calmly said, “Do what you want,” and left the room. At that point, Mr. Siemer continued to evince great hostility and aggression toward me and began attempting to needlessly harangue me out of the conference room. The entire four minutes caused my heart to pound, my head to hurt and I felt extremely anxious as a result of the lawyers’ treatment of me. The four-minute audiotape is attached to the instant motion as Exhibit O and incorporated by reference. It is a true and correct copy of the audio I recorded during the lawyers’ verbal attacks on me on November 19, 2014. 6. On the day of my January 21, 2013 arrest, Sgt. Scott told me that he would be calling Code Enforcement and the East Side Substation for guidance regarding my arrest. I estimate that he consulted for approximately 8-15 minutes. When he returned to me, he told me that he had spoken with “a supervisor” and that 1 would be issued a citation. I told him that was fine. He then told me that I was to. sign the citation. I said that was fine. He then told me that by signing the citation, I would be agreeing to close up my event and return items I had for sale to the stockroom. | told him that I would sign the citation but that I would not stop the event. He then told me that if I signed the citation but did not stop the event I would be arrested. I told him that that ultimatum sounded like coercion and that I would not sign the citation because of it. He then ordered Swan to arrest me. I later learned that the City Code Enforcement department was closed on Martin Luther King, Jr. Day, the day of my arrest. ENISE McVEA, Affiant LINDA L BARRERA NOTARY PUBLIC STATE OF TEXAS MY COMM. EXP. 4/6/17] SWORN AND SUBSCRIBED before me this 1*day of betel; 2014. anu for the State of Texas My commission expires: “8: |"? Affidavit of Denise McVea 12.454 3 ‘SACI4-CA-O073-DAE